Drones and the Future of Aerial Surveillance · Drones and the Future of Aerial Surveillance Gregory S. McNeal* ABSTRACT For the first time in American history a regulatory regime

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Drones and the Future ofAerial Surveillance

Gregory S. McNeal*

ABSTRACT

For the first time in American history a regulatory regime is about toallow for small aircraft without onboard pilots—drones—to fly in the nationalairspace. Legal and technological developments have thus made it all but cer-tain that drones will be a catalyst for new ways of thinking about privacy andsurveillance. This is especially the case because the drones that the FAA haveapproved for operation in the national airspace (small aircraft under fifty-fivepounds) are the exact type of drones that local law enforcement will be mostlikely to acquire and use. Thus, the battle over privacy and aerial surveillancewill be fought in statehouses throughout the country. This Article seeks toframe future discussions about how states will handle the privacy issues asso-ciated with aerial surveillance.

The Article takes the counterintuitive position that technology has the po-tential to make unmanned aerial surveillance more protective of privacy thanmanned surveillance. It further argues that scholars and legislators shouldmove beyond a warrant-based, technology centric approach to protecting pri-vacy from aerial surveillance. Such an approach is unworkable, counter-productive, and may stifle efforts to enact more privacy protective legislativeregimes. Instead, this Article proposes that legal reforms should focus on ex-cluding low altitude flights and surveillance coupled with imposing limits onpersistent surveillance, requiring enhanced accountability procedures for dataretention and access, and creating new transparency, accountability and over-sight measures.

* Associate Professor of Law and Public Policy, Pepperdine University; Co-founder ofAirMap. Portions of this research were sponsored by The Brookings Institution and were pub-lished by Brookings as a short paper. See GREGORY MCNEAL, BROOKINGS INST., DRONES AND

AERIAL SURVEILLANCE: CONSIDERATIONS FOR LEGISLATORS (2014), http://www.brookings.edu/~/media/Research/Files/Reports/2014/10/drones-aerial-surveillance-legislators/Drones_Aerial_Surveillance_McNeal_FINAL.pdf?la=en. Excerpts from this Article also appeared in congres-sional testimony before the House Judiciary Committee and were shared with or were the sub-ject of briefings before the National Lieutenant Governors Association and the National Leagueof Cities. This Article was presented in workshops and presentations at Stanford, Michigan,Georgetown, Brookings, Pepperdine, Boston College, the University of Washington, the UASCommercialization Conference, and the 2014 Association of Unmanned Aerial Vehicle SystemsInternational—Unmanned Expo. I’m thankful for thoughtful comments from AnupamChander, Orin Kerr, Elizabeth Joh, Stuart Banner, John Radsan, Stacy New, Emma Graham,Victoria Schwartz, Hank Greely, Ben Wittes, John Villasenor, Wells Bennett, Julie Cohen,Michael Toscano, Margot Kaminski, Evan Selinger, Mary Rose Papandrea, Ryan Calo, andsometimes anonymous but nevertheless thoughtful commenters at Forbes.com.

March 2016 Vol. 84 No. 2

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2016] DRONES AND THE FUTURE OF AERIAL SURVEILLANCE 355

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356 R

I. AN OVERVIEW OF THE DRONE LAW LANDSCAPE . . . . . . . 362 R

A. The February 2015 Notice of ProposedRulemaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362 R

B. The Evolving Drone-Related Legal Landscape . . . . . . 363 R

C. Privacy Executive Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368 R

1. Rules for Federal Government DroneOperations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369 R

2. Process for Crafting Rules for Private Drones . . 371 R

II. AIRSPACE RIGHTS, TECHNOLOGICAL DISRUPTION, AND

THE CURRENT STATE OF AERIAL SURVEILLANCE

LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371 R

A. The Significance of Vantage Points . . . . . . . . . . . . . . . . . . 373 R

B. Ciraolo, Dow, and Riley . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374 R

C. Low-Altitude Airspace Rights . . . . . . . . . . . . . . . . . . . . . . . 378 R

D. Why Existing Law Won’t Protect Privacy . . . . . . . . . . . 381 R

III. PRIVACY- AND WARRANT-BASED REFORM

PROPOSALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384 R

A. Introduction to the Fight over Drones and Privacy . . 384 R

B. Reject Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386 R

C. Reject Use Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389 R

D. Recognize the Nuanced Nature of Surveillance Lawand the Context-Based Exceptions to the WarrantRequirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391 R

E. Embrace Technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394 R

IV. REFORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396 R

A. Defining Property Rights Is a Necessary butInsufficient Part of Reform . . . . . . . . . . . . . . . . . . . . . . . . . . 396 R

1. Property Rights Should Be Defined . . . . . . . . . . . . 399 R

2. “Navigable Airspace” Is No Longer a HelpfulReference Point. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402 R

B. Place Limits on How Long the Government MaySurveil from the Air . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406 R

C. Adopt Data-Retention Procedures That RequireHeightened Levels of Suspicion and IncreasedProcedural Protections over Time . . . . . . . . . . . . . . . . . . . 408 R

D. Adopt Transparency and Accountability Measures . . 410 R

E. Institutionalized Oversight . . . . . . . . . . . . . . . . . . . . . . . . . . . 413 R

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415 R


356 THE GEORGE WASHINGTON LAW REVIEW [Vol. 84:354

INTRODUCTION

On the Sunday of President’s Day weekend 2015, Secretary ofTransportation Anthony Foxx and Federal Aviation Administration(“FAA”) Administrator Michael Huerta convened a hastily arrangedpublic conference call to announce regulations that would allow forthe integration of drones into the national airspace.1 The regulationsare historic; for the first time in American history, aircraft operatingwithout onboard pilots will have a regulatory regime to govern theiruse.2 Sunday of a holiday weekend was an odd time to announce themost significant aviation-related regulations since the creation of theFAA, but the Agency’s hand was forced.3 A little more than twenty-four hours before the conference call, I wrote a column for Forbes,revealing the details of the pending regulations; the Associated Pressand the Wall Street Journal credited the column with first reportingthe news that forced the FAA to announce their regulations.4

The use of drones for surveillance has to date been a sparselydiscussed topic in legal scholarship; however, the FAA’s proposedchanges to federal law make it all but certain that drones will be acatalyst for new ways of thinking about privacy and surveillance.5 This

1 See Media Advisory—DOT and FAA Announce New Rules for Unmanned Aircraft Sys-tems, FED. AVIATION ADMIN. (Feb. 14, 2015), https://www.faa.gov/news/media_advisories/news_story.cfm?newsId=18294.

2 See, e.g., Joan Lowy, FAA Seeking Drone Rules Favorable to Commercial Operators,ASSOCIATED PRESS (Feb. 14, 2015), reprinted at http://www.msn.com/en-us/news/technology/faa-seeking-drone-rules-favorable-to-commercial-operators/ar-AA9pRFu.

3 Gregory S. McNeal, Leaked FAA Document Provides Glimpse into Drone Regulations,FORBES (Feb. 14, 2015, 4:40 AM), http://www.forbes.com/sites/gregorymcneal/2015/02/14/the-faa-may-get-drones-right-after-all-9-insights-into-forthcoming-regulations/.

4 See Lowy, supra note 2 (acknowledging that Forbes first reported the impending regula- Rtions); Jack Nicas, Federal Document Sheds Light on Proposed Drone Rules, WALL ST. J. (Feb.14, 2015, 7:37 PM), http://www.wsj.com/articles/online-document-sheds-light-on-proposed-drone-rules-1423960620 (same); see also McNeal, supra note 3 (“AP and The Wall Street Journal Rcredited this post with first reporting the story about the regulations, which are now out forpublic comment.”).

5 Technically known as unmanned aerial vehicles or unmanned aircraft systems, this Arti-cle refers to these devices by their colloquial name—drones. For some of the prescient worksdiscussing drones or surveillance issues that might touch on drones, see WELLS C. BENNETT,BROOKINGS INST., CIVILIAN DRONES, PRIVACY, AND THE FEDERAL-STATE BALANCE (2014),http://www.brookings.edu/research/reports2/2014/09/civilian-drones-and-privacy; M. Ryan Calo,The Drone As Privacy Catalyst, 64 STAN. L. REV. ONLINE 29 (2011); David Gray & DanielleCitron, The Right to Quantitative Privacy, 98 MINN. L. REV. 62 (2013); Margot E. Kaminski,Drone Federalism: Civilian Drones and the Things They Carry, 4 CAL. L. REV. CIRCUIT 57(2013); Troy A. Rule, Airspace in an Age of Drones, 95 B.U. L. REV. 155 (2015); Michael L.Smith, Regulating Law Enforcement’s Use of Drones: The Need for State Legislation, 52 HARV. J.ON LEGIS. 423 (2015); Andrew B. Talai, Comment, Drones and Jones: The Fourth Amendmentand Police Discretion in the Digital Age, 102 CALIF. L. REV. 729 (2014).



Article seeks to frame future discussions about how state and localgovernments will handle the privacy issues associated with aerial sur-veillance. To this end, this Article proposes innovative reforms thatmove beyond the call for requiring warrants for the use of drones.

The FAA’s proposed rule is just the start of a new era in aviation.Some estimate that 30,000 drones will be flying in the national air-space (“NAS”) by the end of the decade,6 while others suggest that asmany as one million drones will be sold in 2015 alone.7 According tothe FAA, “[o]nce the entire integration process is complete, the FAAenvisions the NAS populated with UAS [unmanned aircraft systems]that operate well beyond the operational limits proposed in” the ruleannounced on February 15, 2015.8

Drones will be a catalyst for new ways of thinking about privacyand surveillance, but contrary to the hopes of many advocates, theFAA did not address privacy in its proposed rules.9 Rather, the FAAexplicitly stated that matters relating to privacy, civil rights, and civilliberties were beyond the scope of its rulemaking.10 Instead, PresidentObama directed that privacy issues related to the federal govern-ment’s use of drones be handled according to the terms outlined in aPresidential Memorandum, while the issues raised by private uses ofdrones be addressed through rules to be created during a multis-takeholder process led by the National Telecommunications and In-

6 The Future of Drones in America: Law Enforcement and Privacy Considerations: Hear-ing Before the S. Comm. on the Judiciary, 113th Cong. 2 (2013) (statement of Sen. Patrick J.Leahy, Chairman, S. Comm. on the Judiciary).

7 Jake Swearingen, 1 Million Drones Will Be Sold This Christmas, and the FAA Is Terri-fied, POPULAR MECHANICS (Sept. 29, 2015), http://www.popularmechanics.com/flight/drones/news/a17535/the-faa-is-terrified-that-1-million-drones-will-be-sold-this-christmas/.

8 Operation and Certification of Small Unmanned Aircraft Systems, 80 Fed. Reg. 9544,9552 (proposed Feb. 23, 2015) (to be codified at 14 C.F.R. pt. 107) [hereinafter NPRM].

9 See, e.g., Patrice Hendriksen, Note, Unmanned and Unchecked: Confronting the Un-manned Aircraft System Privacy Threat Through Interagency Coordination, 82 GEO. WASH. L.REV. 207, 228–38 (2013) (proposing FAA involvement in an interagency process among UASfederal stakeholders to address privacy); Kellan Howell, Invasion: 7,500 Drones in U.S. AirspaceWithin 5 Years, FAA Warns, WASH. TIMES (Nov. 7, 2013), http://www.washingtontimes.com/news/2013/nov/7/faa-chief-announces-progress-drone-regs/?page=all; Keith Laing, Markey: Pri-vacy Before Drone Deliveries, THE HILL (Dec. 2, 2013, 10:53 AM), http://thehill.com/policy/transportation/191722-markey-protect-privacy-before-drone-deliveries; Matthew J. Schwartz,FAA Promises Privacy Standards for Domestic Drones, DARK READING (Feb. 15, 2013, 11:39AM), http://www.darkreading.com/risk-management/faa-promises-privacy-standards-for-domes-tic-drones/d/d-id/1108691?; Jay Stanley, New Eyes in the Sky: Protecting Privacy from DomesticDrone Surveillance, ACLU: SPEAK FREELY (Dec. 15, 2011, 10:32 AM), http://www.aclu.org/blog/national-security-technology-and-liberty/new-eyes-sky-protecting-privacy-domestic-drone.

10 NPRM, supra note 8, at 9552. R



formation Administration (“NTIA”), a subordinate agency of theDepartment of Commerce.11

Left out of the proposed regulations, the Presidential Memoran-dum, and any rules that will come out of the NTIA process, are poli-cies and procedures to govern the use of drones by state and localgovernments.12 In fact, it appears that the federal government has de-cided to entrust those matters to state law. Indeed, the Notice of Pro-posed Rulemaking (“NPRM”) stated that “state law and other legalprotections for individual privacy may provide recourse for a personwhose privacy may be affected through another person’s use of aUAS.”13 Deferring to state and local governments makes sense, as thevast amount of drone use will occur in situations best handled by stateand local authorities.14 For example, state and local operators will bethe government agents most likely to use drones in search-and-rescueoperations and in support of law enforcement activity like serving awarrant or documenting a crime scene.15 Similarly, the information

11 Id.; see also Gregory S. McNeal, What You Need to Know About the Federal Govern-ment’s Drone Privacy Rules, FORBES (Feb. 15, 2015, 1:40 PM), http://www.forbes.com/sites/gregorymcneal/2015/02/15/the-drones-are-coming-heres-what-president-obama-thinks-about-pri-vacy/; Presidential Memorandum, Promoting Economic Competitiveness While SafeguardingPrivacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems, THE

WHITE HOUSE (Feb. 15, 2015) [hereinafter Drone Privacy Memo], https://www.whitehouse.gov/the-press-office/2015/02/15/presidential-memorandum-promoting-economic-competitiveness-while-safegua.

12 See NPRM, supra note 8, at 9552 (“The FAA also notes that privacy concerns have been Rraised about unmanned aircraft operations. Although these issues are beyond the scope of thisrulemaking . . . . the Department [of Commerce] and FAA will participate in the multi-stake-holder engagement process led by the National Telecommunications and Information Adminis-tration (NTIA) to assist in this process regarding privacy, accountability, and transparency issuesconcerning commercial and private UAS use in the NAS. We also note that state law and otherlegal protections for individual privacy may provide recourse for a person whose privacy may beaffected through another person’s use of a UAS.”) (emphasis added)); Drone Privacy Memo,supra note 11, at 4 (“The [NTIA] process shall not focus on law enforcement or other noncom- Rmercial governmental use.”).

13 NPRM, supra note 8, at 9552. R14 See Kaminski, supra note 5, at 57–58. R15 See, e.g., 2011–2012 FAA List of Drone License Applicants, ELEC. FRONTIER FOUND.,

https://www.eff.org/document/2012-faa-list-drone-applicants (last visited Feb. 26, 2016) (listingmany state and local operators that applied for drone licenses); Kevin Bonham, Grand ForksCounty Drone Assists at Bemidji Blast Scene, GRAND FORKS HERALD (Jan. 28, 2015, 6:35 PM),http://www.grandforksherald.com/news/region/3666035-grand-forks-county-drone-assists-bemidji-blast-scene (discussing use of drone by Grand Forks County Sheriff’s Department in explosioninvestigation); Cyrus Farivar, San Jose Police Department Says FAA Can’t Regulate Its DroneUse, ARS TECHNICA (Aug. 6, 2014, 5:02 PM), http://arstechnica.com/tech-policy/2014/08/san-jose-police-say-faa-cant-regulate-its-drone-use-faa-disagrees/ (explaining that San Jose police want touse drones mainly to access potential explosive devices); Mesa Cty. Sheriff’s Office, UAS Opera-tions Most Frequently Asked Questions (2015), http://sheriff.mesacounty.us/WorkArea/linkit



gathered from a drone for law enforcement will be stored on law en-forcement computers and will be subject to state and local laws gov-erning the handling of personally identifiable information (“PII”) andinformation disclosure.16 Given the significant law and policy issuesthat will arise at the local level, this Article focuses on state and localgovernment uses of drones.17 State and local governments will be thepreeminent battleground for law and policy debates about drones, andit appears they are far behind in crafting rules to handle the myriadconcerns unrelated to safety that drones will prompt.18

Thus, the looming prospect of expanded use of drones has raisedunderstandable concerns for many, and drones will be a source of at-tention for lawmakers and scholars for years to come.19 Those con-cerns have led some to call for legislation mandating that nearly alluses of drones be prohibited unless the government has first obtaineda warrant.20 Privacy advocates have mounted a lobbying campaignthat convinced thirteen states to enact laws that regulate the use of

.aspx?LinkIdentifier=id&ItemID=11383&libID=11401 (“We most often use [UAS] for crimescene photography, and search and rescue missions.”); Ed Pilkington, “We See Ourselves As theVanguard”: The Police Force Using Drones to Fight Crime, THE GUARDIAN (Oct. 1, 2014, 7:49AM), http://www.theguardian.com/world/2014/oct/01/drones-police-force-crime-uavs-north-da-kota (detailing ways Grand Forks Sheriff’s Department has used its drone, including at crimescenes).

16 See, e.g., CAL. GOV’T CODE § 11019.9 (West 2015) (defining state’s privacy policy forpersonally identifiable information); COLO. REV. STAT. ANN. § 24-72-502 (West 2015) (same);Corey Ciocchetti, Just Click Submit: The Collection, Dissemination, and Tagging of PersonallyIdentifying Information, 10 VAND. J. ENT. & TECH. L. 553, 617–19 (2008) (overviewing lawsregarding collection of personally identifying information that some states have in place for bothstate and local agencies and businesses); see also Stephen Rushin, The Legislative Response toMass Police Surveillance, 79 BROOK. L. REV. 1, 53–59 (2013) (proposing model legislation tomaintain privacy of surveillance data collected by police).

17 It is important to note, however, that for private party uses of drones, most instances oftrespass, invasion of privacy, and intrusion upon seclusion will be handled at the local levelthrough property and tort law. See Kaminski, supra note 5, at 65. R

18 See Smith, supra note 5, at 432–33 (noting that several of the state laws regulating gov- Rernment use of drones are beset by loopholes).

19 See, e.g., Tom Curry, Lawmakers Voice Concerns on Drone Privacy Questions, NBCNEWS (Mar. 20, 2013, 11:54 AM), http://nbcpolitics.nbcnews.com/_news/2013/03/20/17389193-lawmakers-voice-concerns-on-drone-privacy-questions?lite; Somini Sengupta, Rise of Drones inU.S. Drives Efforts to Limit Police Use, N.Y. TIMES (Feb. 15, 2013), http://www.nytimes.com/2013/02/16/technology/rise-of-drones-in-us-spurs-efforts-to-limit-uses.html?pagewanted=all.

20 For example, a group of legal scholars wrote a letter in support of a failed California billrequiring warrants for drone use and argued that warrants should be required for drone surveil-lance, because “drones pose privacy and freedom of expression concerns qualitatively differentfrom those raised by traditional forms of aerial surveillance precisely because they allow inex-pensive, sophisticated, and sometimes surreptitious monitoring that goes well beyond the capa-bilities of law enforcement today.” Letter from Robert Calhoun et al., to Edmund G. Brown,Jr., Governor of State of Cal. (Sept. 4, 2014), http://arc.asm.ca.gov/member/AD44/pdf/426-



drones by law enforcement, eleven of which now require a warrantbefore the government may use a drone.21 The campaigns mountedby privacy advocates oftentimes make a compelling (albeit premature)case about the threat of pervasive surveillance, but the legislation israrely tailored in such a way to prevent the harm that advocates fear.22

In fact, in every state where legislation was passed, the new laws arefocused on drone technology—not the harm (pervasive surveillance).23

In many cases, this technology-centric approach creates perverse re-sults, allowing the use of extremely sophisticated and pervasive sur-veillance technologies from manned aircraft,24 while potentiallydisallowing benign (non-privacy-invasive) uses of drones for mundanetasks like accident and crime scene documentation, or monitoring ofindustrial pollution and other environmental harms.25

AB1327supportletterlawprofs.pdf. Some of the signatories are Dean Erwin Chemerinsky, Pro-fessor Christopher Slobogin, and Professor Robert Weisberg. Id.

21 See Smith, supra note 5, at 427–32, 433. R22 See, e.g., JAY STANLEY & CATHERINE CRUMP, ACLU, PROTECTING PRIVACY FROM

AERIAL SURVEILLANCE: RECOMMENDATIONS FOR GOVERNMENT USE OF DRONE AIRCRAFT

15–16 (2011), https://www.aclu.org/files/assets/protectingprivacyfromaerialsurveillance.pdf (rec-ommending usage and image retention restrictions, notice requirements, and democratic con-trols in response to “potentially extremely powerful surveillance tools” of drones).

23 See Smith, supra note 5, at 427–32 (surveying state laws); see also, e.g., FL. STAT. ANN. R§ 934.50(2)(a) (West 2015) (defining “drone” as “a powered, aerial vehicle that: 1. Does notcarry a human operator; 2. Uses aerodynamic forces to provide vehicle lift; 3. Can fly autono-mously or be piloted remotely; 4. Can be expendable or recoverable; and 5. Can carry a lethal ornonlethal payload.”); OR. REV. STAT. ANN. § 837.300(1) (West 2014) (“‘Drone’ means an un-manned flying machine.”).

24 For nine days in early 2012, a small plane flew continuous circles over the City ofCompton, California, beaming low-resolution images to the sheriff’s department in an attempt toview crime in real time, and then have the ability to follow the assailants from above. See AngelJennings, Richard Winton & James Rainey, Sheriff’s Secret Air Surveillance of Compton SparksOutrage, L.A. TIMES (Apr. 23, 2014, 5:05 PM), http://www.latimes.com/local/lanow/la-me-ln-sheriffs-surveillance-compton-outrage-20140423-story.html#page=1. Because this sophisticatedblanket surveillance was manned, it was perfectly legal, and no drone surveillance law would banit.

25 See Smith, supra note 5, at 433–34. For example, the Michigan State Police are hoping Rto get FAA approval to use drones to photograph accident scenes. Chad Livengood, State PoliceFloat Michigan-Wide Drone Use, DETROIT NEWS (Jan. 26, 2015, 11:47 PM), http://www.de-troitnews.com/story/news/politics/2015/01/26/michigan-state-police-drone/22386343/. The Onta-rio, Canada Provincial Police have been fielding drones in the Toronto metro area for the lasttwo years and have found that drones can decrease the time needed to photograph and recon-struct a highway accident scene from two hours to just fifteen minutes. Id. For other drone usesunlikely to invade privacy, see Adam Martin, Using Drones to Capture Environmental ViolationsMakes Perfect Sense, THE WIRE (Jan. 25, 2012, 6:15 PM), http://www.thewire.com/technology/2012/01/using-drones-capture-environmental-violations-makes-perfect-sense/47872/ (noting thatdrones of all types—big, small, expensive, and inexpensive—are being used around the world tomonitor environmental violations, from illegal logging in Brazil to illegal dumping into a river inTexas).



This Article argues that scholars and legislators should move be-yond a warrant-based, technology-centric approach to protecting pri-vacy from aerial surveillance. Such an approach is unworkable,counterproductive, and may stifle efforts to enact more privacy-pro-tective legislative regimes. Instead, legal reform proposals should fo-cus on excluding low-altitude flights and surveillance coupled withimposing limits on persistent surveillance, requiring enhanced ac-countability procedures for data retention and access, and creatingnew transparency and accountability measures. This Article takes thecounterintuitive position that technology may make unmanned aerialsurveillance more protective of privacy than manned surveillance.

Specifically, this Article makes five core recommendations. First,landowners should have the right to exclude aircraft, persons, andother objects from a column of airspace extending from the surface oftheir land up to 200 feet above ground level. Such an approach is anecessary, albeit insufficient, solution aimed at addressing low-altitudeoverflights and surveillance, but is only a stopgap measure, as sophisti-cated surveillance technology continues to evolve and will eventuallyallow for high-quality surveillance from higher altitudes. Second, toaddress the threat of persistent surveillance of particular individuals,this Article argues that legislators should craft simple, duration-basedsurveillance legislation that will limit the aggregate amount of timethe government may surveil a specific individual. Third, to addressthe possibility that drones and other sophisticated aerial surveillancetechnology will allow the government to build a comprehensive pic-ture of an entire community’s daily movements (a different persistentsurveillance harm), governments should enact laws mandating data-retention procedures that require heightened levels of suspicion andincreased procedural protections for accessing stored data gathered byaerial surveillance coupled with a requirement that data be deletedafter a legislatively mandated period of time. Fourth, governmentsshould impose enhanced transparency and accountability measures,requiring agencies to publish on a regular basis information about theuse of aerial surveillance devices (both manned and unmanned), andshould consider creating local oversight boards to police the use ofsurveillance technologies. Fifth, legal reformers should recognize thattechnology, such as geofencing and auto-redaction, may make aerialsurveillance by drones more protective of privacy than humansurveillance.

This Article proceeds as follows: Part I provides an overview ofthe drone law landscape, focusing on the FAA’s February 2015 notice



of proposed rulemaking, the evolving drone-related legal landscape,and President Obama’s recent executive actions related to drones andprivacy. Part II provides necessary background information regardingairspace rights and technological disruption, focusing on the signifi-cance of vantage points in aerial surveillance jurisprudence. This Partalso explains how the uncertainty associated with low-altitude air-space rights will influence the debate over drones and privacy.26 PartIII provides an overview of the most popular reform proposal fordealing with drones and privacy—the requirement that drone use beaccompanied by a warrant.27 This Part rejects this popular reform andthe associated use restrictions that are frequently proposed. After re-jecting warrants and use restrictions, Part IV proposes five reformsthat will be more protective of privacy than any currently advanced byscholars or legislators.28

I. AN OVERVIEW OF THE DRONE LAW LANDSCAPE

A. The February 2015 Notice of Proposed Rulemaking

The FAA Modernization and Reform Act of 201229 directed theFAA to integrate unmanned aircraft systems, colloquially known asdrones, into the national airspace by September 2015.30 On February15, 2015, the FAA released its Notice of Proposed Rulemaking(“NPRM”) for the Operation and Certification of Small UnmannedAircraft Systems.31 Those regulations will allow the routine use ofsmall drones in America.32 The regulations will allow individuals tooperate a drone if they are at least seventeen years of age and havepassed an aeronautical knowledge test.33 The drones those operatorsmay fly must weigh less than fifty-five pounds, the flights must takeplace during daylight hours, and the aircraft must remain within visualline of sight of the operator.34 For identification purposes, operatorswill be required to register their aircraft and ensure the aircraft hasmarkings that meet FAA guidelines.35 Unlike manned aircraft, un-

26 Portions of Part II also appear in a paper published by Brookings. See MCNEAL, supranote *, at 5–11.

27 Portions of Part III also appear in a paper published by Brookings. Id. at 22–27.28 Portions of Part IV also appear in a paper published by Brookings. Id. at 12–22.29 FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, 126 Stat. 11.30 Id. § 332(a)(1), 126 Stat. at 73.31 See NPRM, supra note 8. R32 See id. at 9544.33 Id. at 9546.34 Id.35 Id.



manned aircraft will not be required to undergo airworthiness stan-dards or certification requirements; instead, operators themselves willbe responsible for ensuring their aircraft are safe for flight, presuma-bly by conducting a preflight inspection before takeoff.36 The newregulations will not apply to model aircraft if those operators continueto satisfy all of the criteria specified in section 336 of the FAA Mod-ernization and Reform Act, including the stipulation that they be op-erated only for hobby or recreational purposes.37 The proposed rulemaintains the existing prohibition against operating in a careless orreckless manner.38 It also would bar an operator from allowing anyobject to be dropped from the UAS.39

B. The Evolving Drone-Related Legal Landscape

Although the proposed regulations from the FAA are a recentdevelopment, some states began legislating in anticipation of theFAA’s regulations (or perhaps in response to the rise in the number ofreported unauthorized drone flights).40 The first drone-related legisla-tion at the state level appeared in 2013 in Florida, Idaho, Montana,Oregon, North Carolina, Tennessee, Texas, and Virginia.41 In 2014,Illinois, Indiana, Iowa, Utah, and Wisconsin also passed laws seekingto address the use of drones by law enforcement.42 California’s propo-

36 Id.37 Id.; see also Interpretation of the Special Rule for Model Aircraft, 79 Fed. Reg. 36,172,

36,173 (June 25, 2014) (to be codified at 14 C.F.R. pt. 91). The rules state that a model aircraftmust be “flown within visual line of sight of the person operating the aircraft” and must be“flown strictly for hobby or recreational use.” Id. Furthermore, model aircraft must weigh fifty-five pounds or less, id., and if operating the model aircraft within five miles of an airport, theoperator must notify the control tower. Id. at 36,175.

38 NPRM, supra note 8, at 9546, 9566. R39 See id. at 9566.40 See, e.g., Gregory A. Hall, Drones’ Promise Weighed Against Privacy, Safety, COURIER-

JOURNAL (Dec. 14, 2014, 8:06 AM), http://www.courier-journal.com/story/money/2014/12/13/drones-promise-weighed-privacy-safety/20357485 (quoting Kentucky legislator stating that“[e]ven if the concerns are somewhat premature and drones have many legitimate uses, thepotential for abuse is great and should be addressed as soon as possible”).

41 See Freedom from Unwarranted Surveillance Act, ch. 33, 2013 Fla. Laws 364; Act ofApr. 11, 2013, ch. 328, 2013 Idaho Sess. Laws 859; Act of May 1, 2013, ch. 377, 2013 Mont. Laws1509; Current Operations and Capital Improvements Appropriations Act of 2013, No. 360,§ 7.16.(e) 2013 N.C. Sess. Laws. 1040; Act of July 29, 2013, ch. 686, 2013 Or. Laws 1869; Freedomfrom Unwarranted Surveillance Act, 2013 Tenn. Pub. Acts ch. 470; 2013 Tex. Gen. Laws 3691;Act of Apr. 3, 2013, ch. 755, 2013 Va. Acts 1408.

42 Freedom from Drone Surveillance Act, No. 569, 2013 Ill. Laws 6803; Act of Mar. 26,2014, No. 170, 2014 Ind. Acts 2234; Act of May 23, 2014, ch. 1110, 2014 Iowa Acts 324; Act ofApr. 1, 2014, ch. 399, 2014 Utah Laws 2095; Act of Apr. 8, 2014, No. 213, 2013 Wis. Sess. Laws1120.



sal for a warrant requirement was vetoed by the governor;43 but forthe 2015 legislative session, new bills have been pending in California,Colorado, Connecticut, New Mexico, North Carolina, North Dakota,and Washington.44 These legislative efforts have been largely aimed atrestricting the government’s use of drone technology, while neverthe-

43 See Phil Willon & Melanie Mason, Governor Vetoes Bill That Would Have Limited Po-lice Use of Drones, L.A. TIMES (Sept. 28, 2014, 7:09 PM), http://www.latimes.com/local/political/la-me-ln-governor-vetoes-bill-to-limit-police-use-of-drones-20140928-story.html. California’sGovernor Brown vetoed the bill because “[t]he measure appeared to impose restrictions on lawenforcement that go beyond federal and state constitutional protections against unreasonablesearch and seizures and the right to privacy.” Id.

44 A bill currently in the Washington State House “would prohibit the use of drones tocollect ‘personal information’ without a warrant. Once such warrants are issued, the legislationallows their use for ten days. The legislation also bans public agencies from even acquiringdrones without specific authorization from the appropriate governing body.” Michael Boldin,Bill to Stop Warrantless Drone Surveillance Passes First Step in Washington State, TENTH

AMEND. CTR. (Feb. 13, 2015), http://blog.tenthamendmentcenter.com/2015/02/bill-to-stop-war-rantless-drone-surveillance-passes-first-step-in-washington-state/. The Maryland House of Dele-gates is considering a new bill, HB620, that would limit the use of drones by preventing “stateagencies from conducting surveillance using drones without first obtaining a warrant. There areexceptions in the bill for drone use during emergency response situations and for search andrescue. The bill further makes it illegal for private citizens to use drones to eavesdrop on theirneighbors.” Sonya Burke, State Delegate Introduces Legislation to Limit Use of Drones, MONT-

GOMERY COMMUNITY MEDIA (Feb. 18, 2015), http://www.mymcmedia.org/state-delegate-in-troduces-legislation-to-limit-use-of-drones/. The proposed New Mexico bill “would preventmaterial collected without a warrant from being used in court and would allow people targetedby drones to seek civil action.” Russell Contreras, NM Joins Other States in Grappling withDrones, KRQE NEWS 13 (Feb. 24, 2015, 1:57 PM), http://krqe.com/2015/02/24/nm-joins-other-states-in-grappling-with-drones/. The bill, however, would not prohibit the use of a drone when“swift action is necessary to prevent imminent danger to life.” Id. (internal quotation marksomitted). The North Carolina General Assembly will consider a bill that “would tighten theauthority of the state’s chief information officer to approve or disapprove the use of drones bythe state or a political subdivision of the state, as well as place limits on disclosure of personalinformation on any person acquired through the operation of a drone.” Richard Craver, Pro-posed State Legislation Doesn’t Deal with Proper Limits on Monitoring by Law Enforcement,WINSTON-SALEM J. (Feb. 15, 2015, 12:05 AM), http://www.journalnow.com/news/local/proposed-state-legislation-doesn-t-deal-with-proper-limits-on/article_74185f49-0626-51da-9ec6-6504bc955123.html. The Connecticut state legislature will be holding hearings in the near future to weighpossible drone legislation. See Bill Cummings, State to Hold Drone Hearings on Regulation ofDrones, CTPOST.COM, http://www.ctpost.com/local/article/Connecticut-to-hold-drone-hearings-6083993.php (last updated Feb. 16, 2015, 11:34 PM). A Colorado bill “would require law enforce-ment agencies to acquire a warrant before using an unmanned aerial vehicle.” Ryan Haarer,MCSO Not on Board with Drone Legislation, KUSA.COM (Feb. 17, 2015, 6:37 PM), http://www.9news.com/story/news/local/politics/2015/02/17/colorado-police-drones-use/23565283/. The NorthDakota House of Representatives overwhelmingly passed a bill, HB1328, that if passed by theSenate and signed into law would “require law enforcement agencies to obtain a warrant beforedeploying a drone for surveillance purposes with only a few exceptions. The legislation alsoprovides a blanket prohibition on the use of weaponized drones, on the use of unmanned aircraftfor private surveillance, and on drone surveillance of persons exercising their right of free speechor assembly.” Mike Maharrey, North Dakota House Passes Bill to Stop Warrantless Drone Spy-



less allowing the government to conduct identical (or perhaps moreintrusive) surveillance from manned aircraft.45 This absurd anachro-nism is not unknown; privacy advocates have explicitly chosen to capi-talize on the public interest and attention associated with dronetechnology as a way to achieve legislative victories while not pursuinga legislative strategy aimed at similarly intrusive manned technology.46

In other words, some advocates are admittedly focused only ondrones, rather than on legislation that addresses all surveillance harmsirrespective of the technology used.

There is a significant policy harm that flows from a singular focuson drones: by solely focusing on privacy concerns that come fromdrone technology but not addressing the broader concerns of aerialsurveillance at large, advocates are missing an opportunity to usedrones as a vehicle for more widespread privacy-oriented reforms.This Article argues that this is a shortsighted course of action. Al-though one of this Article’s proposals focuses on the location fromwhich surveillance takes place—a reform largely targeted at drones—it further argues that reforming data-retention procedures and surveil-lance techniques can have a much broader impact on all types of ae-rial surveillance. The proposals outlined in this Article, if adopted,will do more to protect privacy than any of the reforms currently pro-posed by privacy advocates and will still allow for innovation and jus-tifiable law enforcement activities.

By way of background, it is important to note that privacy advo-cates contend that drones will enable the government to engage inwidespread pervasive surveillance because drones are cheaper to op-erate than their manned counterparts.47 Although it is true that

ing 74–19, TENTH AMEND. CTR. (Feb. 24, 2015), http://blog.tenthamendmentcenter.com/2015/02/north-dakota-houses-passes-bill-to-stop-warrantless-drone-spying-74-19/.

45 See supra notes 41, 42, 44. R46 For example, one ACLU advocate acknowledged that “ideally, we would love to see

broad regulations that cover all surveillance technologies, whether it is GPS, or phone tracking,or what have you. But if you go to state legislatures—and we have our lobbyists in state legisla-tures—and try and put forth a very, very broad surveillance bill like that right now, it’s not goingto go anywhere. We’re fighting a large-scale war here over surveillance and privacy, and rightnow, we have an opportunity to get in place some rules around drones because there is so muchpublic interest and fascination with drones. And so, we are pushing forward on that front.”RadioTimes with Marty Moss-Coane: The Rise of Domestic Drones, (Aug. 25, 2014) at 42:30,http://whyy.org/cms/radiotimes/2014/08/25/the-rise-of-domestic-drones/.

47 STANLEY & CRUMP, supra note 22, at 1 (“[M]anned aircraft are expensive to purchase, Roperate and maintain, and this expense has always imposed a natural limit on the government’saerial surveillance capability. . . . The prospect of cheap, small, portable flying video surveillancemachines threatens to eradicate existing practical limits on aerial monitoring and allow for per-vasive surveillance . . . .”).



drones are cheaper to operate, the drones most law enforcementagencies can afford are currently far less capable than their mannedcounterparts (oftentimes, these drones are small remote-controlledhelicopters or airplanes, capable of a flight time of less than onehour).48 With that said, the surveillance equipment that can be placedon these drones is advancing rapidly. Although size and payload limi-tations today generally mean that this equipment will be far less intru-sive than that which can be mounted to manned aircraft,49 the pace ofevolution in the development of technology suggests that reformersshould focus not only on collection, but also on use and retention.

Technology is no doubt advancing at a rapid pace, but the com-monly used term “unmanned aircraft” is presently misleading as thereare no systems available now to law enforcement that can conductfully autonomous operations without a human operator directing sur-veillance activities.50 Full autonomy of this type, with automated sur-veillance is likely more than a decade away.51 In fact, the FAA’sproposed rules for drones require any autonomous operations to beconducted within the visual line of sight of the operator,52 meaningthose operations are not truly autonomous; rather, they are more akinto driving a car using cruise control because the operator must be pre-sent. The implication of those proposed regulations and the state oftechnological development is that, for at least the next few years, a

48 See, e.g., Erika Aguilar, LAPD Gets Two Free Draganflyer Drones from Seattle Police,89.3 KPCC (May 31, 2014), http://www.scpr.org/news/2014/05/31/44468/lapd-gets-two-free-dra-ganflyer-drones-from-seattle/ (discussing dispute over Draganflyer drones, which “weigh about3.5 pounds each with a still and video camera, thermal vision capabilities for night vision, and a20-minute battery life”); Christine Clarridge, Police Department Demonstrates New Drone, toHelp Allay Concerns, SEATTLE TIMES, http://www.seattletimes.com/seattle-news/police-depart-ment-demonstrates-new-drone-to-help-allay-concerns/ (last updated Apr. 28, 2012, 9:23 AM)(discussing 3.5-pound drone with battery life of less than ten minutes that can only carry up tothirty-five ounces).

49 See Chris Johnston, Meeting the Design Challenges for Imaging Payloads on SmallUAVs, LASER FOCUS WORLD, Apr. 2013, at 30, http://www.laserfocusworld.com/articles/print/volume-49/issue-04/features/defense---security--meeting-the-design-challenges-for-imaging-pa.html (discussing how small size restricts payloads and is a challenge for design engineers).

50 MCNEAL, supra note *, at 3; see also Kelly Greeling, Autonomous Robots in Law En-forcement: Future Legal and Ethical Issues 3 (Dec. 18, 2012) (unpublished manuscript), http://opensiuc.lib.siu.edu/cgi/viewcontent.cgi?article=1407&context=gs_rp.

51 See Brian Fung, Get Ready: The Autonomous Drones Are Coming, THE ATLANTIC (Jan.16, 2013), http://www.theatlantic.com/international/archive/2013/01/get-ready-the-autonomous-drones-are-coming/267246/.

52 See NPRM, supra note 8, at 9546, 9562. The proposed FAA rules require that the un- Rmanned aircraft remain within the operator’s visual line of sight, meaning that the drone “mustremain close enough to the operator for the operator to be capable of seeing the aircraft withvision unaided by any device other than corrective lenses.” Id. at 9546.



human operator will need to be present and within a very short dis-tance of any drone if government surveillance activity is to takeplace.53 Thus, in almost all instances of state or local law enforcementusage, drones will be less capable than manned aerial surveillanceplatforms, and while the platform is cheaper, the personnel costs willnot be eliminated, as an officer will still be required to operate thedrone.

Admittedly, federal law enforcement agencies and the militarypossess very sophisticated systems, but local law enforcement agenciesare unlikely to be able to afford the highly sophisticated multimilliondollar systems like those used for surveillance on battlefields.54 Thosesystems (both the aircraft and the ground control station) are moreexpensive than manned helicopters, require a ground crew to launchand recover the aircraft, and necessitate both a pilot and a cameraoperator.55 Despite these facts and the near certainty that, in the shortrun, drones will not be as sophisticated as some fear, the legislationbeing advanced in many states is explicitly directed at drone technol-ogy rather than at surveillance practices.56 The concentration of schol-ars, advocates, and legislators has been sorely misdirected. Focusing

53 Of course, the large Predator- and Reaper-type drones that the U.S. military and Cus-toms and Border Protection operate are not governed by the NPRM (which applies to smallunmanned aircraft systems). See id at 9546. However, those large systems are not the subject ofthis Article, as they are so expensive and complex that they are simply not practicable for stateand local government use. See infra note 55 and accompanying text. Furthermore, if the federal Rgovernment wants to provide state and local governments with a drone, it will need to complywith the President’s Executive order on privacy. See Drone Privacy Memo, supra note 11. R

54 See, e.g., MQ-9 Reaper, U.S. AIR FORCE (Sept. 23, 2015), http://www.af.mil/AboutUs/FactSheets/Display/tabid/224/Article/104470/mq-9-reaper.aspx (noting that four Reaper “re-motely piloted aircraft[s]” with sensors, ground control station, and “Predator Primary satellitelink” cost $64.2 million in fiscal year 2015 dollars); Patrick Tucker, White House Wants MoreReaper Drones to Fight ISIS, DEFENSE ONE (Feb. 2, 2015), http://www.defenseone.com/technol-ogy/2015/02/white-house-wants-more-reaper-drones-fight-isis/104340/ (noting that Reapers “costabout $14 million apiece”).

55 MCNEAL, supra note *, at 3; see also David Axe, Air Force Drone Crews Got So Demor-alized That They Booed Their Commander, MEDIUM: WAR IS BORING (Sep. 29, 2014), https://medium.com/war-is-boring/air-force-drone-crews-got-so-demoralized-that-they-booed-their-commander-cfd455fea40f (“Fifty-nine people launch, land and repair the Predators at airfieldsnear the actual combat zones . . . . Forty-five [combat air patrol] members live and work at an airbase in the United States, flying the drones via Ku-band satellite.”); Keith Wagstaff, Eyes in theSky: Are Pricey Border Patrol Drones Worth the Money?, NBC NEWS (July 13, 2014, 4:02 PM),http://www.nbcnews.com/storyline/immigration-border-crisis/eyes-sky-are-pricey-border-patrol-drones-worth-money-n153696 (“Predator drones are not cheap. They take a crew of betweenfive to eight people—plus maintenance staff—to operate, coming out to about $3000 an hour tofly. That is after the initial $18 million price tag.”).

56 See generally RadioTimes with Marty Moss-Coane: The Rise of Domestic Drones, supranote 46. R



reforms on the technology will not prevent privacy harms; rather, at-tention should be on what is collected, for how long, and how thatinformation is handled.57

C. Privacy Executive Order

Is there room for the federal government to act on matters re-lated to privacy? There is, but the prospects for reform are dim, asrepeated efforts to craft federal legislation have been rejected in favorof leaving privacy up to the states. Rather than directing the FAA topromulgate regulations to address privacy, the President instead is-sued an Executive order, styled as an Executive memorandum.58 ThatMemorandum directed the federal government to create standards forhow it will address the privacy issues associated with drones.59 Underthe order, federal agencies and some recipients of federal funds willhave one year to publish their plans to implement the President’spolicies.60

The President’s Memorandum acknowledges that drones “mayplay a transformative role in fields as diverse as urban infrastructuremanagement, farming, public safety . . . and disaster response.”61 Inaddition, it states that drones are a lower-cost alternative to mannedaircraft and can reduce risks to human life.62 The President’s directivepromises to take account of “the privacy, civil rights, and civil libertiesconcerns these systems may raise.”63 The Memorandum segmentsfederal drone operations from privately operated drones and leaves

57 See infra Part III; see also Hillary Schaub, How to Maximize the Benefits of Robots,BROOKINGS INST.: TECHTANK (Sept. 22, 2014, 7:30 AM), http://www.brookings.edu/blogs/techtank/posts/2014/09/21-robot-better-future-schaub (“Lawmakers should focus on harms andnot technologies. Drones should be treated the same as a helicopter or a person using binocularson a hill. Technologies like geofencing and auto-redaction could allow drones to protect privacyeven better than human surveillance.”).

58 Drone Privacy Memo, supra note 11. On the subtle differences between an Executive Rorder and other forms of Executive action, see JOHN CONTRUBIS, CONG. RESEARCH SERV., 95-722 A, EXECUTIVE ORDERS AND PROCLAMATIONS 20 (1999) (“Another executive tool which hasraised many questions is the presidential memoranda. Although they possess a different titlethan executive orders, it appears as though these instruments are very much alike. Both areundefined, written instruments by which the President directs, and governs actions by, Govern-ment officials and agencies. They differ in that executive orders must be published in the Fed-eral Register whereas presidential memoranda are similarly published only if the Presidentdetermines that they have ‘general applicability and legal effect.’”).

59 See Drone Privacy Memo, supra note 11. R60 Id.61 Id.62 Id.63 Id.



the matter of state- and local-operated drones (except those pur-chased with federal funds) to be addressed by the states.64

1. Rules for Federal Government Drone Operations

The President’s order requires agencies to implement the guide-lines below and inform the public about how to access their policies byFebruary 15, 2016.65 The Memorandum requires federal agencies toexamine their drone policies prior to the adoption of new drone tech-nology and at least every three years thereafter.66 The Memorandumnotes that drones must only be used in a manner consistent with theConstitution, federal law, and other applicable regulations and poli-cies.67 It also reaffirms that individuals have the right to seek access toand amendment of records associated with drone usage.68

The President’s Memorandum also created new requirements forcollection of information by drones, mandating that agencies only col-lect information “to the extent that such collection or use is consistentwith and relevant to an authorized purpose.”69 Information collectedby drones “that is not maintained in a system of records covered bythe Privacy Act shall not be disseminated outside of the agency unlessdissemination is required by law, or fulfills an authorized purpose andcomplies with agency requirements.”70 If information collected usingdrones contains PII, that information “shall not be retained for morethan 180 days unless retention of the information is determined to benecessary to an authorized mission of the retaining agency, is main-tained in a system of records covered by the Privacy Act, or is re-quired to be retained for a longer period by any other applicable lawor regulation.”71

To addresses civil liberties, the Memorandum mostly referencesexisting laws.72 Specifically, it calls on agencies to ensure they havepolicies to prohibit collection, use, retention, or dissemination of datain a manner that would violate the First Amendment or would ille-gally discriminate based on protected categories like ethnicity, race,

64 See id.65 Id.66 Id.67 Id.68 Id.69 Id.70 Id.71 Id.72 See id.



and gender, among others.73 The Memorandum also requires agenciesto ensure they have in place a means to “receive, investigate, and ad-dress . . . privacy, civil rights, and civil liberties complaints.”74

Moreover, the President’s Memorandum contemplates significantoversight and accountability measures that must accompany any in-creased use in drone technology. For example, agencies will be re-quired to ensure their oversight procedures including audits orassessments, comply with existing policies and regulations. Federalgovernment personnel and contractors who work on drone programswill require rules of conduct and training, and procedures will need tobe implemented for reporting suspected cases of misuse or abuse ofdrone technologies.”75

Finally, in a passage particularly relevant to this Article, theMemorandum addresses drones shared with state and local govern-ments, those drones purchased with federal funds, and informationgathered by drones that is shared with others.76 It further states thatsuch operations must comply with Executive orders and other applica-ble laws and regulations.77 “If agencies authorize the use of drones inresponse to requests from Federal, State, local, tribal or territorialgovernment operations, it will need to be conducted pursuant to es-tablished policies and procedures.”78 State, local, tribal or territorialgovernment recipients of federal grant funding for the purchase or useof drones will also need to “have in place policies and procedures tosafeguard individuals’ privacy, civil rights, and civil liberties prior toexpending such funds.”79 These are relatively minor changes that dovery little to impact most drone operations, as most were likely al-ready complying with federal laws and regulations (which, as the sub-sequent sections of this Article point out, impose very few restrictionson aerial surveillance).80

On transparency, the Executive Memorandum takes measures toprovide the public with greater information about the federal govern-ment’s use of drones.81 The memorandum “attempts to balance pri-

73 Id.74 Id.75 Id.76 Drone Privacy Memo, supra note 11; McNeal, supra note 11. R77 Drone Privacy Memo, supra note 11; McNeal, supra note 11. R78 McNeal, supra note 11; see Drone Privacy Memo, supra note 11, at 3. R79 Drone Privacy Memo, supra note 11; McNeal, supra note 11. R80 See infra Part II.D.81 Drone Privacy Memo, supra note 11; McNeal, supra note 11. R



vacy with national security and law enforcement interests.”82

Agencies must “provide notice to the public regarding where [in thenational airspace] the agency’s [drones] are authorized to operate.”83

Agencies are also told to “keep the public informed about” theirdrone programs and any “changes that would significantly affect pri-vacy, civil rights, or civil liberties.”84 Each year, agencies must alsoprovide “a general summary of” their drone operations for the previ-ous fiscal year.85 “That summary must include ‘a brief description of[the] types or categories of missions flown, and the number of timesthe agency provided assistance to other agencies, or State, local, tribal,or territorial governments.’”86

2. Process for Crafting Rules for Private Drones

As part of the President’s directive, the Department of Com-merce’s National Telecommunications and Information Administra-tion (“NTIA”) was tasked with initiating a process for creatingprivacy, accountability, and transparency rules for commercial andprivate uses of drones.87 The process was explicitly designed to “notfocus on law enforcement or other noncommercial governmentaluse.”88 The process for crafting rules typically begins with a notifica-tion and a request for public comments regarding a privacy blueprint.Following a sixty-day comment period, a notice will be published re-garding a series of multi-stakeholder meetings. Those stakeholdermeetings are designed to create a set of consensus-based voluntaryrules that may take up to a year to draft. Because NTIA does nothave the regulatory authority to impose their rules on individuals ororganizations, the rules are considered merely voluntary.89

II. AIRSPACE RIGHTS, TECHNOLOGICAL DISRUPTION, AND THE

CURRENT STATE OF AERIAL SURVEILLANCE LAW

To understand how emergent the issue of drones and aerial sur-veillance is, one need only look at the Westlaw database of law reviewarticles: prior to 2008, only one law review article addressed the legal

82 McNeal, supra note 11. R83 Drone Privacy Memo, supra note 11; McNeal, supra note 11. R84 Drone Privacy Memo, supra note 11; McNeal, supra note 11. R85 Drone Privacy Memo, supra note 11; McNeal, supra note 11. R86 McNeal, supra note 11 (quoting Drone Privacy Memo, supra note 11). R87 Id.; see Drone Privacy Memo, supra note 11. R88 McNeal, supra note 11 (quoting Drone Privacy Memo, supra note 11). R89 Id.



issues associated with integrating drones into the national airspace.90

Only recently have scholars begun to address the topic, but the disrup-tive nature of drones and the permissiveness of the FAA’s proposedregulations will likely prompt an avalanche of legal scholarship in theyears to come. This Section addresses the disruption brought aboutby drones and situates that disruption within the current state of aerialsurveillance law and airspace rights.

Although this Article focuses on the future and new technology,history is directly relevant to this emergent legal and policy debatebecause, for the past sixty-eight years, the law governing propertyrights and airspace—which is critically important to determining howdrones may operate—has sat largely undisturbed.

In 1946, the Supreme Court declared in United States v. Causby91

that “airspace is a public highway” and carved out a common area inthe atmosphere known as “navigable airspace” through which aircraftcan fly without interfering with the rights of landowners below.92 Atthe same time, the Court provided landowners with a right to excludelow-flying aircraft from their property, stating “if the landowner is tohave full enjoyment of the land, he must have exclusive control of theimmediate reaches of the enveloping atmosphere.”93 This granting ofa right to travel through airspace, while at the same time reservinglandowners’ rights in the air immediately above their land, was a sim-ple compromise solution that has served America well for nearly sev-enty years. Since Causby, the law and legal scholarship related toairspace rights has sat mostly undisturbed, and the four decades oflegal wrangling that preceded the Causby case have been relegated tothe realm of interesting historical background.94

With the emergence of drones, understanding the rights of prop-erty owners versus private and government drone operators has be-come increasingly important. The legal system at the turn of thecentury struggled to handle the emergence of airplanes, and the mod-ern airspace system is largely the byproduct of the compromise solu-

90 The author performed a word search in Westlaw for “adv: unmanned /2 aircraft & na-tional airspace & DA(bef 01-01-2008).” See also Mark Edward Peterson, The UAV and theCurrent and Future Regulatory Construct for Integration into the National Airspace System, 71 J.AIR L. & COM. 521 (2006).

91 United States v. Causby, 328 U.S. 256 (1946).92 Id. at 264. For interesting background on airspace rights at the turn of the century, see

STUART BANNER, WHO OWNS THE SKY? THE STRUGGLE TO CONTROL AIRSPACE FROM THE

WRIGHT BROTHERS ON (2008).93 Causby, 328 U.S. at 264.94 See, e.g., BANNER, supra note 92. R



tion created by the U.S. Supreme Court in Causby. That compromisecould endure, so long as aircraft did not operate low enough to inter-fere with the property rights of persons below—the exact place wheredrones will likely be operating.

A. The Significance of Vantage Points

The small, unmanned aircraft destined for integration into the na-tional airspace as a result of the FAA Modernization and Reform Actof 2012 are specifically designed to operate at low altitudes where theyprovide their greatest economic value.95 This reality will raise seriousquestions about government use of drones because a threshold ques-tion for the Fourth Amendment analysis under California v. Ciraolo96

and Florida v. Riley97 is whether an observation was made from a law-ful vantage point.98 Thus, the fact that realtors are already usingdrones to create aerial videos and photographs of homes, using dronesequipped with GoPro-type cameras at roughly thirty feet,99 (the heightof an average two-story home) suggests a law enforcement activityfrom the same vantage point would not violate the Fourth Amend-ment. That is especially true when one considers that realtors maytraverse over the low-altitude airspace of neighbors, suggesting itwould be unreasonable for an individual to expect privacy from suchlow-altitude observations if similarly conducted by the police. Farm-ers also want to use drones to enhance their crop yields, minimize theuse of pesticides, and conserve water.100 Those farmers will likely flywell below the navigable airspace for manned aircraft, and the FAAclaims the authority to regulate the farmer’s airspace down to millime-ters above the farmer’s property.101 If the public navigable airspace

95 E.g., Rakesh Sharma, Growing the Use of Drones in Agriculture, FORBES (Nov. 26, 2013,3:15 PM), http://www.forbes.com/sites/rakeshsharma/2013/11/26/growing-the-use-of-drones-in-agriculture/ (describing advantages of low-altitude drone flights for farmers).

96 California v. Ciraolo, 476 U.S. 207 (1986).97 Florida v. Riley, 488 U.S. 445 (1989).98 See id. at 449; Ciraolo, 476 U.S. at 213. Ciraolo and Riley are also discussed infra Sec-

tion B.99 See Winnie Hu, Still Unconvinced, Home Buyer? Check Out the View from the Drone,

N.Y. TIMES: APPRAISAL (Dec. 23, 2013), http://www.nytimes.com/2013/12/24/nyregion/still-unconvinced-home-buyer-check-out-the-view-from-the-drone.html?_r=0.

100 See Douglas Kennedy, Farmers Eye Drones As Key to Future of Agriculture, FOXNEWS

.COM (Feb. 27, 2015), http://www.foxnews.com/tech/2015/02/27/farmers-eye-drones-as-key-to-future-agriculture/; Sharma, supra note 95. R

101 Gregory S. McNeal, The Federal Government Thinks Your Backyard Is National Air-space and Toys Are Subject to FAA Regulations, FORBES (Nov. 18, 2014, 12:47 PM), http://www.forbes.com/sites/gregorymcneal/2014/11/18/the-federal-government-thinks-your-backyard-is-national-airspace-and-toys-are-subject-to-faa-regulations/.



extends down to millimeters above the farmer’s land, does that makeit a public thoroughfare through which anyone can fly over thefarmer’s property? If so, then presumably law enforcement can flyover the farmer’s property and use the information gathered from thatlawful vantage point in court against the farmer (perhaps to enforceenvironmental regulations).102 To add complexity to the analysis, thefarmer may have rights under his state constitution, and those rightsmay be in conflict with federal regulations allowing low-altitude flightsover his property.103 Rather than settling these questions and othersin the aviation cases the Supreme Court heard at the beginning of thetwentieth century, the Court merely avoided them. At the turn of thetwenty-first century, the emergence of drones will cause legal scholarsto revisit these issues, and the following Sections will lay the ground-work for understanding the surveillance law and airspace rights issuesthat are essential for addressing emergent privacy concerns.

B. Ciraolo, Dow, and Riley

Aerial observations of the curtilage of a home are generally notprohibited by the Fourth Amendment, so long as the government isconducting the surveillance from public navigable airspace, in a non-physically intrusive manner, and the government conduct does not re-veal intimate activities traditionally associated with the use of thehome.104 The U.S. Supreme Court addressed the issue of aerial sur-veillance in a series of cases in the late 1980s.

In California v. Ciraolo, the Supreme Court held that a warrant-less aerial observation of a backyard, “visible to the naked eye,” didnot violate the Fourth Amendment.105 In Ciraolo, the police receiveda tip that someone was growing marijuana in the backyard at Ciraolo’s

102 The EPA, for example, has been conducting “pollution-control flights” over Nebraskaranches. EPA Planes Spying on Ranchers? Lawmakers Want Answers, NBC NEWS (May 31,2012, 3:12 PM), http://usnews.nbcnews.com/_news/2012/05/31/11993693-epa-planes-spying-on-ranchers-lawmakers-want-answers?lite.

103 For example, the California Constitution explicitly provides for a right to privacy. CAL.CONST. art. I, § 1. The Nevada Constitution provides residents of that state with airspace rightsextending up to 500 feet above their property. See McCarran Int’l Airport v. Sisolak, 137 P.3d1110, 1120 (Nev. 2006); see also id. at 1119 (“Therefore, the airspace above required minimumaltitudes for flight, as established in federal regulations, is in the public domain, while the owner-ship of the airspace below such minimum altitudes is vested in the owner of the subjacent land,who is entitled to compensation for flights invading that airspace when taken by thegovernment.”).

104 See Florida v. Riley, 488 U.S. 445, 449–50, 452 (1989); California v. Ciraolo, 476 U.S.207, 213–15 (1986).

105 Ciraolo, 476 U.S. at 215.



home.106 A police officer attempted to observe what was growing, buthis observations were obscured by a six-foot high outer fence and aten-foot high inner fence.107 The officer, suspicious that the fencesmight be intended to hide the growth of marijuana, obtained a privateplane and flew over the backyard of Ciraolo’s property at an altitudeof 1000 feet.108 That altitude was within the FAA’s definition of publicnavigable airspace.109 The Supreme Court found that this was not asearch and therefore was not prohibited by the Fourth Amendment.110

In so finding, Chief Justice Burger stated that in erecting a ten-footfence, Ciraolo manifested “his own subjective intent and desire tomaintain privacy as to his unlawful agriculture pursuits,” but that his“intent and desire” did not amount to an expectation of privacy thatsociety was prepared to deem reasonable.111 The Court noted that thefence “might not shield these plants from the eyes of a citizen or apoliceman perched on the top of a truck or a two-level bus.”112 Ac-cordingly, it was “not entirely clear” whether Ciraolo maintained “asubjective expectation of privacy from all observations of his backy-ard,” or only from ground-level observations.113 The Court believedthat it was unreasonable for Ciraolo to expect privacy in his backyardwhen a routine overflight or an observation “by a power companyrepair mechanic on a pole overlooking the yard” would reveal exactlywhat the police discovered in their overflight.114

At the same time that Ciraolo was decided, the Court held inDow Chemical Co. v. United States115 that the use of an aerial mappingcamera to photograph an industrial manufacturing complex from nav-igable airspace similarly does not require a warrant under the FourthAmendment.116 In Dow Chemical, the Supreme Court did acknowl-edge that the use of technology might change the Court’s inquiry, stat-ing “surveillance of private property by using highly sophisticatedsurveillance equipment not generally available to the public, such assatellite technology, might be constitutionally proscribed absent a

106 Id. at 209.107 Id.108 Id.109 Id. at 209, 213.110 See id. at 214–15.111 Id. at 211, 214.112 Id. at 211.113 Id. at 212.114 Id. at 214–15.115 Dow Chem. Co. v. United States, 476 U.S. 227 (1986).116 Id. at 239.



warrant.”117 The Court, however, dismissed this notion, stating that“[a]ny person with an airplane and an aerial camera could readily du-plicate” the photographs at issue.118 In short, the Court stated, “tak-ing of aerial photographs of an industrial plant complex fromnavigable airspace is not a search prohibited by the FourthAmendment.”119

The thematic parallels between Ciraolo and Dow are important,and it is important to restate the facts of Ciraolo here to ensure a closecomparison of the cases. In Ciraolo, the Court held that the defen-dant did not have a reasonable expectation of privacy in his backyarddespite having erected fences to obscure the yard from view.120 TheCourt reasoned that while the defendant shielded his yard from theview of those on the street, other observations from a truck or a two-level bus might have allowed a person to see into his yard.121 Continu-ing, the Court stated, “[t]he Fourth Amendment protection of thehome has never been extended to require law enforcement officers toshield their eyes when passing by a home on public thoroughfares.”122

Dismissing the defendant’s efforts to protect his privacy by erecting afence, the Court said that “the mere fact that an individual has takenmeasures to restrict some views of his activities [does not] preclude anofficer’s observations from a public vantage point where he has a rightto be and which renders the activities clearly visible.”123 Despite thefact that the police flew a small commercial airplane over Ciraolo’sland to make their observation, that observation took place from“public navigable airspace in a physically nonintrusive manner.”124

From these facts, the Court noted that while the defendant may haveexpected privacy in his backyard, privacy from aerial viewing was notone that society was prepared to deem reasonable.125 The Courtstated, “[i]n an age where private and commercial flight in the publicairways is routine, it is unreasonable for respondent to expect that hismarijuana plants were constitutionally protected from being observedwith the naked eye from an altitude of 1,000 feet.”126

117 Id. at 238.118 Id. at 231.119 Id. at 239.120 California v. Ciraolo, 476 U.S. 207, 214 (1986).121 Id. at 211.122 Id. at 213.123 Id. (emphasis added).124 Id. (citation omitted).125 Id. at 214.126 Id. at 215.



Shortly after Ciraolo and Dow Chemical, the Supreme Court ana-lyzed the use of helicopters for aerial surveillance. In Florida v. Riley,the police flew a helicopter over Riley’s land and observed marijuanaplants growing in Riley’s greenhouse.127 The Riley Court noted that“[t]he Fourth Amendment simply does not require the police travelingin the public airways at this altitude [400 feet] to obtain a warrant inorder to observe what is visible to the naked eye.”128 The Riley Courtfound that the rule of Ciraolo controlled.129 Riley, just like Ciraolo,took measures that “protected against ground-level observation,” but“the sides and roof of his greenhouse were left partially open,” just asthe sky above Ciraolo’s property allowed one to look directly downinto his yard.130

The Court in Riley found that “what was growing in the green-house was subject to viewing from the air.”131 The police conduct inRiley was acceptable because the police were flying in public naviga-ble airspace, “no intimate details connected with the use of the homeor curtilage were observed, and there was no undue noise, and nowind, dust, or threat of injury.”132 The Court also explained that“[a]ny member of the public could legally have been flying overRiley’s property in a helicopter at the altitude of 400 feet and couldhave observed Riley’s greenhouse. The police officer did no more.”133

In an important passage, Justice O’Connor—concurring in the judg-ment—noted that “public use of altitudes lower than [400 feet]—par-ticularly public observations from helicopters circling over thecurtilage of a home—may be sufficiently rare that police surveillancefrom such altitudes would violate reasonable expectations of privacy,despite compliance with FAA air safety regulations,”134 suggestingthat more frequent low-altitude flights might impact whether it is rea-sonable for one to expect privacy from aerial observations.

Taken together, Riley, Dow, and Ciraolo teach that the law, for atleast the last twenty-five years, has allowed the police to fly aircraftover private property, backyards, factory farms, industrial plants, andany other place where the average citizen may fly a Cessna or a heli-copter. The police may make observations from the air, just like a

127 Florida v. Riley, 488 U.S. 445, 448 (1989).128 Id. at 450 (quoting Ciraolo, 476 U.S. at 215).129 Id. at 449.130 Id. at 450.131 Id.132 Id. at 451–52.133 Id. at 451.134 Id. at 455 (O’Connor, J., concurring).



person on a commercial flight inbound to an airport can look downand observe the yards of people below, and just like a utility workeron a pole can look down into an adjacent yard. Armed with informa-tion gained from lawful vantage points like those described above, thepolice can use that information to get a warrant to go in on foot andinvestigate what was previously observed without a warrant from alawful vantage point. For more than two decades, the police have notbeen required to turn a blind eye to evidence of criminality merelybecause they observed it from the air. The consequences of this ruleare that, absent some substantial changes to aerial surveillance law, ora set of legislative rules to restrict aerial surveillance, the police willnot be required to ignore evidence of criminality merely because theywitness the evidence through the eyes of a drone. But, the drones thatlaw enforcement are likely to purchase will not operate at the alti-tudes where police made their observations in Riley (400 feet) andCiraolo (1000 feet); they will operate at much lower altitudes, sug-gesting that there is some uncertainty in how aerial surveillance lawwill evolve. That uncertainty suggests that legislatively directed re-forms may be preferable to a process of common law adjustment.

C. Low-Altitude Airspace Rights

Low-altitude operation provides an opening point for a discus-sion of limited legal reforms. As the preceding Section indicated, theSupreme Court’s aerial surveillance jurisprudence makes reference to“public navigable airspace” or observations from “a public vantagepoint where [an officer] has a right to be.”135 By tying the FourthAmendment’s protections to the location in airspace from which thesurveillance was conducted, the Supreme Court has left open the pos-sibility that low-altitude surveillance may not in fact violate the FourthAmendment. That is because the use of drones at low altitudes, theFAA’s NPRM, and FAA interpretations of its own regulations all sug-gest that the public navigable airspace may extend to the ground.136

Moreover, the drones that law enforcement is most likely to acquireand operate are most effective at altitudes below 500 feet. Drones are

135 California v. Ciraolo, 476 U.S. 207, 213 (1986).136 See Gregory S. McNeal, California’s Drone Trespass Bill Is Great, Except for One Fatal

Flaw, FORBES (Feb. 16, 2015, 2:12 PM), http://www.forbes.com/sites/gregorymcneal/2015/02/16/californias-drone-trespass-bill-is-great-except-for-one-fatal-flaw/; see also NPRM, supra note 8, Rat 9546–47 (establishing 500 feet as the ceiling for commercial drone flights with the floor beingground level); Interpretation of the Special Rule for Model Aircraft, 79 Fed. Reg. 36,172, 36,172(June 25, 2014) (establishing 400 feet as the ceiling for recreational drone flights, with the floorbeing ground level).



thus poised to disrupt aerial surveillance law by operating in airspacethat heretofore has not been the subject of caselaw or statutes.

To understand this emergent legal issue, it is necessary to circleback to the Causby case, which was briefly discussed earlier. In the1946 case United States v. Causby, the Supreme Court analyzed theairspace rights of landowners.137 The Causby case involved chickenfarmers whose farm was adjacent to a small municipal airport that theU.S. military began using during World War II.138 The military flightswere so low (eighty-three feet above the land and sixty-three feetabove the Causbys’ barn) that the Causbys’ chickens were frightenedby each overflight, and as a result flew into the wall of their chickencoop and died.139 The Causbys sued the federal government claimingthat the government’s flights constituted a Fifth Amendment taking.140

The Supreme Court’s opinion, authored by Justice William Doug-las, began by analyzing the ad cœlum doctrine.141 That doctrine had itsroots in common law jurisprudence dating back centuries to Cino daPistoia’s declaration “[c]ujus est solum, ejus est usque ad cœlum,”which, translated means “[t]o whomsoever the soil belongs, he ownsalso to the sky.”142 The doctrine “assigned airspace rights based onownership of the surface land situated immediately below the space,”which consisted of “a column of airspace held by landowners . . . [that]theoretically extended indefinitely to the outer reaches of theheavens.”143

Justice Douglas, analyzing the ad cœlum doctrine quickly dis-pensed with it, stating that it had “no place in the modern world.”144

Rather, Justice Douglas said that a landowner owned “at least asmuch of the space above the ground as he can occupy or use in con-nection with the land.”145 If the government or any other party in-

137 United States v. Causby, 328 U.S. 256 (1946).138 Id. at 258.139 Id. at 258–59.140 Id. at 258.141 Id. at 260–61.142 See Rule, supra note 5, at 166 (quoting BLACK’S LAW DICTIONARY 378 (6th ed. 1990)) R

(citing Stuart S. Ball, The Vertical Extent of Ownership in Land, 76 U. PA. L. REV. 631, 631(1928)) (noting that the full maxim reads “cujus est solum, ejus est usque ad cœlum et ad in-feros”). Black’s translates the full maxim: “to whomsoever the soil belongs, he owns also to thesky and to the depths.” BLACK’S LAW DICTIONARY, supra, at 378 (emphasis added).

143 Rule, supra note 5, at 166; see also BLACK’S LAW DICTIONARY, supra note 142, at 37 R(6th ed. 1990) (“Literally, to heaven.”).

144 Causby, 328 U.S. at 261; see also BLACK’S LAW DICTIONARY, supra note 142, at 37 R(citing Causby as rejecting the doctrine).

145 Causby, 328 U.S. at 264.



trudes into that space, such intrusions should be treated “in the samecategory as invasions of the surface.”146 Such invasions could, in theright circumstances, be treated as a trespass and on the facts presentedby Causby, the flights could be considered a compensable taking.147

The facts of Causby importantly involved flights that were “so low andso frequent as to be a direct and immediate interference with the en-joyment and use of the land.”148 The Causby opinion thus created twotypes of airspace: the public navigable airspace, a “public highway” inwhich the landowner could not exclude aircraft from flying; and theairspace below that which extends downward to the surface, in whichlandowners held some right to exclude aircraft, and into which intru-sions would be treated as if they were intrusions upon the land.149 Forour purposes, that means that a law enforcement flight by a drone at alow enough altitude (in which a landowner could otherwise exclude)would be akin to the officer walking on the landowner’s property.

This discussion brings into focus the possibility that a landownermay exclude others from entering the low-altitude airspace above hisproperty, and as such may exclude drones (whether government- orcivilian-operated) from entering that airspace. But, if such rights infact exist, at what altitude are such property rights triggered? Unfor-tunately, there is very little clarity on this point,150 and the Court pur-posefully left the issue ambiguous.151 The Supreme Court referred tothis low-altitude airspace as the “immediate reaches” above the landinto which intrusions would “subtract from the owner’s full enjoymentof the property.”152

The lack of clarity presents a significant issue of law and publicpolicy, as the drones that law enforcement and citizens are most likelyto operate are small planes and multicopters that are most effectivewhen used below 500 feet. To understand the practical import ofthese developments, consider the Supreme Court’s opinion in Califor-nia v. Ciraolo. Central to the Court’s holding there was the notionthat government surveillance took place from a “public vantage

146 Id. at 265.147 See id. at 261, 266–67.148 Id. at 266.149 See Rule, supra note 5, at 198, 208. R150 See id. at 179 n.128 (“[S]ome jurisdictions have recognized rights in super-adjacent air-

space above 500 feet . . . .”).151 See Causby, 328 U.S. at 266 (“The airspace, apart from the immediate reaches above the

land, is part of the public domain. We need not determine at this time what those precise limitsare.”).

152 Id. at 264–65.



point” where a police officer had “a right to be.”153 But, if the officerin Ciraolo were to conduct that surveillance today with a drone hewould likely not fly the drone up to 1000 feet; in fact, he would likelyfly it just high enough above the landowner’s property to look downand observe the marijuana plants, likely under forty feet in altitude.Would such a flight violate the landowner’s reasonable expectation ofprivacy? To resolve that issue, a court would first need to determine ifthe observation took place from a “public vantage point.”154 Answer-ing that question would largely depend on how obscured the land wasfrom other observations at the same altitude. It would also requirethat the landowner have a right to exclude the drone from flying overhis property—after all, if any person with a drone bought on Amazoncould fly over a neighbor’s backyard and observe evidence of illegal-ity, the police would not be required to avert their eyes from evidencesimilarly observed by a law enforcement officer.155 Of course, even ifa landowner could exclude overflights, that alone would not preventthe officer from flying the drone above public land, such as the street,or over a neighbor’s property with permission.156 In such a circum-stance, the officer need only stand on the sidewalk and fly the droneto an altitude high enough to see into the landowner’s property.Whether a low-altitude aerial observation above public land to peerinto private property would be considered a public vantage point, andtherefore acceptable from a Fourth Amendment perspective, is simi-larly an open question.157

D. Why Existing Law Won’t Protect Privacy

The prior Sections set forth existing law, highlighting the ambigu-ities and significant questions that the increased use of drones by law

153 California v. Ciraolo, 476 U.S. 207, 213 (1986).154 See id.; Florida v. Riley, 488 U.S. 445, 449 (1989).155 California v. Greenwood, 486 U.S. 35, 41 (1988) (“[T]he police cannot reasonably be

expected to avert their eyes from evidence of criminal activity that could have been observed byany member of the public.”).

156 See id. Or perhaps without permission. Because Fourth Amendment rights are per-sonal, a trespass on a neighbor’s property would not trigger rights under the exclusionary rulefor the non-neighbor target of surveillance unless such a trespass violated the target’s reasonableexpectation of privacy. See Rakas v. Illinois, 439 U.S. 128, 133–34 (1978) (“Fourth Amendmentrights are personal rights which, like some other constitutional rights, may not be vicariouslyasserted. A person who is aggrieved by an illegal search and seizure only through the introduc-tion of damaging evidence secured by a search of a third person’s premises or property has nothad any of his Fourth Amendment rights infringed.” (citations omitted)).

157 Of course, if such observations became frequent occurrences, legislatures may want tosimilarly prohibit low-altitude observations over public land, not just above private property.



enforcement will raise. How might these open questions be resolved?Likely not in a way that protects the privacy rights of landowners.Recall that in Riley, the plurality relied on Ciraolo. But in a dissentingopinion in Riley, Justice Brennan presciently highlighted the problemsthat plagued the plurality’s analysis. He wrote:

Imagine a helicopter capable of hovering just above an en-closed courtyard or patio without generating any noise, wind,or dust at all—and, for good measure, without posing anythreat of injury. Suppose the police employed this miracu-lous tool to discover not only what crops people were grow-ing in their greenhouses, but also what books they werereading and who their dinner guests were. Suppose, finally,that the FAA regulations remained unchanged, so that thepolice were undeniably “where they had a right to be.”Would today’s plurality continue to assert that “[t]he right ofthe people to be secure in their persons, houses, papers, andeffects, against unreasonable searches and seizures” was notinfringed by such surveillance? Yet that is the logical conse-quence of the plurality’s rule . . . .158

Analyzing this passage, Professor Troy Rule notes “[t]wenty-fiveyears after Riley, law enforcement agencies can now easily purchasethe very hypothetical ‘miraculous tool’ that Justice Brennan forebod-ingly described.”159 Professor Rule is mostly right. Although it is notclear that silent devices can be “easily purchase[d]” today, the smalldrones that police are likely to purchase in the future may operatewithout creating noise, and while they do not yet have the lift capacityto carry cameras capable of seeing what books people are reading, weare at most a few years away from such capability.160 Interestingly, inthis passage, Justice Brennan was discussing manned aircraft,161 andmanned aircraft presently possess the capabilities he feared.162 Thissuggests that reforms will need to go beyond merely excluding aircraftfrom conducting low-altitude aerial surveillance; rather, broader re-forms to surveillance practices, specifically how long surveillance may

158 Riley, 488 U.S. at 462–63 (Brennan, J., dissenting).159 Rule, supra note 5, at 174. R160 See 5 UAV Technologies for Police, POLICEONE.COM (Apr. 10 2014), http://www.police-

one.com/police-products/investigation/video-surveillance/articles/7067279-5-UAV-technologies-for-police/.

161 See Riley, 488 U.S. at 463.162 See Kim Zetter, NYPD Helicopter Views Faces from Miles Away, WIRED (June 5, 2008,

9:03 AM), http://www.wired.com/2008/06/nypd-helicopter/ (discussing helicopter with ability to“recognize a face from two miles away, peer inside a building from three to four miles away, andtrack a suspect car from 12 miles away”).



be conducted and what must be done with the data once gathered, arenecessary components of any reform scheme.163 While banning aerialsurveillance absent a warrant may be a possibility, we have witnessedvery few proposals seeking to ban the use of high-powered camerasmounted to helicopters or airplanes. Given the lack of interest in ban-ning those capabilities from manned aircraft, it is difficult to see whybanning drones (which do not yet possess such capabilities) is a ra-tional policy choice. Nevertheless, if engineers can continue to in-crease the lift capacity of drones, and can miniaturize the superiortechnology already mounted on manned aircraft, drones may eventu-ally possess the capabilities Justice Brennan feared. That is why thisArticle argues that it is prudent to legislate with an eye towards con-trolling aerial observations irrespective of whether they are from adrone or a manned platform.

The important takeaway from this review of airspace rights andaerial surveillance law is not the future observational capabilities ofsurveillance aircraft, but the locational capabilities drones currentlypossess, namely the ability to hover “just above an enclosed court-yard.”164 It is at those lower altitudes that the drones law enforcementagencies can acquire today become most capable. Thus, defining“public navigable airspace” has become the critical piece in resolvingthe future of aerial surveillance and law enforcement. The FAA hasresolved the question, defining the airspace from the ground up to 500feet as public navigable airspace for drones.165

In light of this extension of the public navigable airspace down toground level, state and local governments will need to act to definethe rights of landowners in the airspace above their land. In so doing,state and local governments will answer many of the open questionsregarding public vantage points and resolve open questions regardingthe Fourth Amendment. This Article will address the reforms thatstate and local governments should adopt to deal with aerial surveil-lance, but first, the next Part will address why state and local govern-ments should reject the call for a warrant requirement for drones.

163 This Article makes this precise argument in the Reform Section, infra Part IV.164 Riley, 488 U.S. at 462.165 See NPRM, supra note 8, at 9562. The limit for maned aircraft is generally set at 500 R

feet or higher, with an exception for helicopter operations, for example. See id. at 9562–63.



III. PRIVACY- AND WARRANT-BASED REFORM PROPOSALS

A. Introduction to the Fight over Drones and Privacy

A number of organizations and scholars have expressed concernover the possibility that thousands of drones will crowd the skies,armed with sophisticated cameras.166 The ACLU, for example, hasbeen quite vocal in its criticism, releasing a report that sets out itsconcerns over the prospect of intrusive aerial surveillance withoutproper safeguards.167 To counter the threat of aerial surveillance,scholars and advocates have focused almost entirely on requiring war-rants before law enforcement uses drones.168 Such a mandate will dolittle to protect privacy from other forms of aerial surveillance, and“oftentimes will result in the grounding of drone technology in cir-cumstances where law enforcement use of drones would be benefi-cial” and pose a minimal impact on privacy.169 For example, in light ofthe Boston Marathon bombing, police may want to fly a drone abovea marathon to ensure the safety of the public.170 Under many pro-posed bills and enacted legislation, police would not be allowed to usea drone unless they had probable cause to believe a crime had been orwas about to be committed.171 What this means is that the police

166 See, e.g., Stanley, supra note 9. R167 See STANLEY & CRUMP, supra note 22, at 1. R168 MCNEAL, supra note *, at 3.169 Id.170 See Maggie Clark, Boston Bombings Show Future Use for Police Drones, HUFFPOST

POL. (May 1, 2013, 9:50 AM), http://www.huffingtonpost.com/2013/05/01/boston-bombing-drones_n_3192694.html (noting that Boston Police Commissioner Edward F. Davis believed us-ing drones at the 2014 Boston Marathon would be “a good idea”); MCNEAL supra note *, at 3.

171 For example, Florida prohibits “law enforcement agenc[ies]” from using drones “togather evidence or other information,” but makes an exception when the agency “first obtains asearch warrant signed by a judge authorizing the use of a drone.” FLA. STAT. ANN. §§ 934.50(3),(4)(b) (West 2015). Similarly, in Utah, “[a] law enforcement agency may not obtain, receive, oruse data acquired through an unmanned aerial vehicle unless the data is obtained: (a) pursuantto a search warrant; [or] (b) in accordance with judicially recognized exceptions to warrant re-quirements.” UTAH CODE ANN. § 63G-18-103(1) (West 2014). In Wisconsin, no “law enforce-ment agency may use a drone to gather evidence or other information in a criminal investigationfrom or at a place or location where an individual has a reasonable expectation of privacy with-out first obtaining a search warrant.” WIS. STAT. ANN. § 175.55(2) (West 2014). Montana lawprovides that, “[i]n any prosecution or proceeding within the state of Montana, information froman unmanned aerial vehicle is not admissible as evidence unless the information was obtained:(a) pursuant to the authority of a search warrant; or (b) in accordance with judicially recognizedexceptions to the warrant requirement.” MONT. CODE ANN. § 46-5-109(1) (2013). And Tennes-see prohibits “law enforcement agenc[ies]” from using “a drone to gather evidence or otherinformation,” but makes an exception when “law enforcement agency first obtains a search war-rant signed by a judge authorizing the use of drone.” TENN. CODE ANN. §§ 39-13-609(c), (d)(2)(2014). Along the same lines, a bill introduced in the State of Washington would require a



would need to put together a warrant application with sufficient factsto prove to a judge that they had probable cause.172 In most instances,a warrant application will need to define with particularity the place tobe searched or the persons to be surveilled.173 Thus, to observe peoplegathered in a public place like a park or at a public event like a paradeor a rally, these drone-specific warrant requirements would necessi-tate a detailed application to view what was already publicly visible,merely because the observation was made by a drone, rather than byan officer on a rooftop or in a helicopter.174 Nothing in the FourthAmendment requires a warrant for observations of persons in publicplaces, but those who argue for a warrant requirement for drone usewould impose such obligations on law enforcement.175

The imposition of rules that exceed the requirements of theFourth Amendment is particularly problematic because, in reality,making out the probable cause showing when the police want to ob-serve large public gatherings will be difficult, if not impossible, for thepolice to satisfy. After all, if the police knew who in a crowd was apotential bomber, they would arrest those individuals. Rather, a pub-lic gathering is the type of event where the police would want to use adrone to monitor wide areas generally, looking for unknown attack-ers, and in the unfortunate event of an attack, use the footage to iden-tify the perpetrators after the fact. This is akin to what the police doevery day by patrolling in their cars, serving as foot patrols in a crowd,or flying overhead in a helicopter. A marathon or other large publicgathering is precisely the type of circumstance where the use of adrone could be helpful, but unfortunately, it has been outlawed inmany states.176

warrant to collect “personal information” and limit the duration of such warrants to ten days.Supra note 44. R

The U.S. Supreme Court has made clear that “[p]robable cause exists where ‘the facts andcircumstances within [the arresting officers’] knowledge and of which they had reasonably trust-worthy information [are] sufficient in themselves to warrant a man of reasonable caution in thebelief that’ an offense has been or is being committed.” Draper v. United States, 358 U.S. 307,313 (1959) (alterations in original) (quoting Carroll v. United States, 267 U.S. 132, 162 (1925));see also Carroll, 267 U.S. at 161 (noting probable cause means evidence that would “warrant aman of prudence and caution in believing that the offense has been committed”).

172 For example, California law provides that “[a] search warrant cannot be issued but uponprobable cause, supported by affidavit, naming or describing the person to be searched orsearched for, and particularly describing the property, thing, or things and the place to besearched.” CAL. PENAL CODE § 1525 (West 2015).

173 Id.174 MCNEAL supra note *, at 3.175 See id.176 See Smith, supra note 5, at 433–34. R



To make matters worse, excluding this type of drone surveillancewill do little to protect privacy, as this type of flight poses few directharms to privacy. After all, a marathon is a highly public event, theevent is televised, it takes place on streets where there are surveillancecameras, spectators are photographing the event, and there are evencamera operators riding motorcycles following participants in theevent.177 Perhaps even more problematic, states are focusing prima-rily on drones and do not seem concerned with other types of aerialsurveillance equipment. This technology-centric approach has donelittle to protect privacy but poses a risk to public safety, depriving lawenforcement of a tool that it could use to protect potential crime vic-tims. Of course, recording a public gathering does raise concernsabout recording and warehousing data about individuals that mightlater be used to paint a picture about their movements more gener-ally—think of how filming a public rally might chill expression underthe First Amendment.178 This concern, though, is not one that shouldbe addressed by imposing a warrant requirement on drone use; ratherit is best addressed by limiting how long a specific person can besurveilled, limiting how long information about individuals can bestored, and implementing rules for when that information must be de-leted.179 Thus, while warrants appeal to privacy advocates, they are ablunt and simplistic instrument that fail to address the particularharms that might flow from aerial surveillance. Imposing such rulesdoes very little to protect privacy but curtails noninvasive, beneficialuses of drones.

B. Reject Warrants

In light of these considerations, this Article argues that calls forproposals that require warrants for the use of drones should be re-jected. Legislation that requires warrants for drones treats the infor-mation from a drone differently from information gathered from amanned aircraft, by a police officer in a patrol car, or even an officer

177 See, e.g., BMW Motorcycles Play Key Role in 2013 London Marathon, ULTIMATE MO-

TORCYCLING MAG. (Apr. 24, 2013), https://ultimatemotorcycling.com/2013/04/24/bmw-motorcycles-play-key-role-in-2013-london-marathon/ (noting the use of “camera bikes” alongside mara-thon runners for recording and timing); Jennifer Levitz & Brian Costa, Boston Marathon Returnswith Heightened Spirit, Security, WALL ST. J., http://www.wsj.com/articles/SB10001424052702304626304579509803281225202 (last updated Apr. 21, 2014, 7:29 PM) (noting an estimated one mil-lion spectators and over one hundred surveillance cameras were along the Boston Marathoncourse in 2014).

178 See Rushin, supra note 16, at 54. R179 Id. (recommending state legislation require that surveillance data be destroyed after

one year).



on foot patrol. Under current Fourth Amendment jurisprudence, po-lice are not required to shield their eyes from wrongdoing until theyhave a warrant.180 Why impose such a requirement on the collectionof information by drones? Many of the efforts to impose a warrantrequirement rely on the threat of the government’s persistent and per-vasive surveillance of the population as a reason to impose a warrantrestriction.181 While the danger of persistent and pervasive surveil-lance is a distinct harm that should be addressed, it should not beaddressed through a warrant requirement. Warrants and other autho-rizations to collect evidence often ban ordinary aerial observationsthat are only controversial because they take place with a remote-con-trolled helicopter or airplane (a drone) rather than a manned one. If

180 See Horton v. California, 496 U.S. 128, 130 (1990) (“[E]ven though inadvertence is acharacteristic of most legitimate ‘plain-view’ seizures, it is not a necessary condition.”); id. at 141(“[T]he seizure of an object in plain view does not involve an intrusion on privacy. If the interestin privacy has been invaded, the violation must have occurred before the object came into plainview and there is no need for an inadvertence limitation on seizures to condemn it.” (footnoteomitted)); California v. Ciraolo, 476 U.S. 207, 213 (1986) (“That the area is within the curtilagedoes not itself bar all police observation. The Fourth Amendment protection of the home hasnever been extended to require law enforcement officers to shield their eyes when passing by ahome on public thoroughfares.”); Washington v. Chrisman, 455 U.S. 1, 5–6 (1982) (noting thatofficer who is lawfully in dorm room may seize marijuana pipe and seeds found in plain viewbecause “[t]he ‘plain view’ exception to the Fourth Amendment warrant requirement permits alaw enforcement officer to seize what clearly is incriminating evidence or contraband when it isdiscovered in a place where the officer has a right to be”); Harris v. United States, 390 U.S. 234,236 (1968) (“It has long been settled that objects falling in the plain view of an officer who has aright to be in the position to have that view are subject to seizure and may be introduced inevidence.”); Katz v. United States, 389 U.S. 347, 351 (1967) (“What a person knowingly exposesto the public, even in his own home or office, is not a subject of Fourth Amendmentprotection.”).

181 See supra notes 166–68 and accompanying text; see also STANLEY & CRUMP, supra note R22, at 1 (“The prospect of cheap, small, portable flying video surveillance machines threatens to Reradicate existing practical limits on aerial monitoring and allow for pervasive surveillance, po-lice fishing expeditions, and abusive use of these tools in a way that could eventually eliminatethe privacy Americans have traditionally enjoyed in their movements and activities.”); id. at 15(“In general, drones should not be deployed except[ ] . . . where the government has obtained awarrant based on probable cause.”); Erwin Chemerinsky, Police Should Get Warrants forDrones, SACRAMENTO BEE: VIEWPOINTS (Sept. 23, 2014, 12:00 AM), http://www.sacbee.com/opinion/op-ed/article2610671.html#storylink=cpy (“Technological developments, like drones,pose a great threat to privacy. The warrant requirement long has been used to balance lawenforcement needs and privacy interests. It should be applied to drones, and other emergingtechnology.”); Testimony and Statement for the Record of Amie Stepanovich, Associate LitigationCounsel, Electronic Privacy Information Center, Hearing on “Using Unmanned Aerial SystemsWithin the Homeland: Security Game Changer?,” Before the Subcomm. on Oversight, Investiga-tions, & Mgmt. of the H.R. Comm. on Homeland Sec., ELEC. PRIVACY INFO. CTR. 8 (July 19,2012), https://epic.org/privacy/testimony/EPIC-Drone-Testimony-7-12.pdf (arguing that becauseof privacy concerns, Congress should adopt legislation that would “limit the use of drone surveil-lance in criminal investigations without a warrant”).



any person in a Cessna can see pollution pouring from a factory or ifpolice flying in a helicopter can see a cartel’s drug operations orhuman trafficking ring—and such observations can be admitted as evi-dence in a criminal trial—shouldn’t citizens and the police be able tomake the same observations from a drone and expect that the evi-dence will not be excluded merely because it is collected with a re-mote-controlled aircraft?

For example, imagine a police officer on patrol in her squad car.While driving, she witnesses the car in front of her strike a pedestrianand then speed away. Until witnessing the crime, she did not haveprobable cause (the predicate level of suspicion for a warrant) or evenreasonable suspicion (the predicate level of suspicion for a brief inves-tigatory stop)182 to believe the vehicle in front of her would be in-volved in a crime. Let us further assume that her dashboard camerarecorded the entire incident. Despite lacking probable cause or rea-sonable suspicion, the evidence from the dashboard camera may beadmitted and used against the driver in a subsequent criminal pro-ceeding. However, under the broadly worded proposals that havebeen introduced in many state legislatures and the U.S. Congress, thesame piece of evidence if gathered by a drone would be inadmissiblein court because police did not have a warrant. That restriction doesnot protect privacy; it merely protects criminality.

Consider another example: police receive an anonymous tip thatsomeone is growing marijuana in his backyard. A police officer at-tempts to view the backyard from the ground, but a ten-foot tall fenceblocks his view. The officer next decides to fly a commercially availa-ble remote-controlled helicopter over the suspect’s backyard. From avantage point that does not violate FAA regulations, the officer ob-serves marijuana plants growing in the yard. This observation wouldbe unlawful under proposals that require a warrant for observationsfrom a drone. However, these facts are nearly identical to the facts inthe Supreme Court’s 1986 California v. Ciraolo decision that upheldaerial surveillance.183 The only difference is that in Ciraolo, the officerflew over the backyard in an airplane, rather than using a drone.184 Infact, the Ciraolo Court noted that not only would observation of themarijuana plants from the air (as described above) be lawful, but sug-gested that police officers peering over the fence from the top of a

182 See Terry v. Ohio, 392 U.S. 1, 20–22 (1968).183 See Ciraolo, 476 U.S. at 209.184 Id.



police truck would also be lawful.185 By extension, an observation ofthe marijuana plants by police from the third floor of a neighboringhome would also be lawful. However, under proposals requiring awarrant for drone observations, this evidence would be inadmissiblemerely because it came from a drone.

The examples above raise questions about what public policygoals are advanced when evidence documented by a drone is sup-pressed and when the same evidence, if recorded by a dashboard cam-era, observed from an airplane, or viewed from a neighboring homewould be admissible in court. No policy goal is advanced. Rather, thewarrant requirement serves only to prohibit most uses of drones whileclaiming to prevent certain harms, like persistent surveillance. Theseharms, however, are best addressed by more narrowly tailoredreforms.

C. Reject Use Restrictions

Some jurisdictions have approached the challenge of drones bynot only requiring warrants, but also by enacting limitations on howinformation gathered from drones may be used.186 These restrictionsare an effort to allow for beneficial drone usage while limiting the

185 See id. at 211.186 For example, North Carolina provides that “no State or local governmental entity or

officer may procure or operate an unmanned aircraft system or disclose personal informationabout any person acquired through the operation of an unmanned aircraft system unless theState CIO approves an exception specifically granting disclosure, use, or purchase. Any excep-tions to the prohibition in this subsection shall be reported immediately to the Joint LegislativeOversight Committee on Information Technology and the Fiscal Research Division.” CurrentOperations and Capital Improvements Appropriations Act of 2013, No. 360, § 7.16(e) 2013 N.C.Sess. Laws. 995, 1040.

Oregon generally prohibits the use of drones to “acquire information” and the disclosure of“information acquired through the operation of a drone.” OR. REV. STAT ANN. § 837.310(1)(West 2014). The law does, however, make a number of exceptions to the prohibition on use anddisclosure, including for the use of drones with a warrant, with consent, for search and rescueand other exigencies, and to reconstruct crime scenes. Id. §§ 837.320–.340.

Texas allows images captured by drones to be used by law enforcement for, among otherthings, “the purpose of documenting a crime scene,” “for the purpose of investigating the sceneof . . . a human fatality . . . [or] a motor vehicle accident,” or “in connection with the search for amissing person.” TEX. GOV’T CODE ANN. § 423.002(a)(8)(B)–(C) (West 2014). “A person com-mits an offense if the person uses an unmanned aircraft to capture an image of an individual orprivately owned real property . . . with the intent to conduct surveillance on the individual orproperty captured in the image.” Id. § 423.003(a). And such images “may not be used as evi-dence in any criminal or juvenile proceeding, civil action, or administrative proceeding.” Id.§ 423.005(a)(1).

In Virginia, no “government department, agency or instrumentality having jurisdiction overcriminal law enforcement or regulatory violations” was allowed to operate a drone until July 1,2015. 2013 Va. Acts 1408. Exceptions exist for Amber Alerts, Senior Alerts, Blue Alerts, search



fruits of surveillance, thereby limiting the privacy impact of drone sur-veillance. Such proposals appear reasonable, but are in fact mis-guided. The proposals generally prohibit the use of any evidence thatdrones gather in nearly any proceeding or prohibit it unless the gath-ering was accompanied by a warrant.187 Such restrictions exceed theparameters of the Fourth Amendment and in some circumstances mayonly serve to protect criminals without deterring governmental wrong-doing. The examples below will illustrate the hazards of uselimitations.

In February 2013, the Alameda County California Sheriff’s De-partment proposed the use of small drones for crime-scene documen-tation, disposal of explosive ordinances, hazardous-material response,search and rescue, public safety and life preservation missions, disas-ter response, fire prevention, and documentation of a felony whensuch documentation is premised upon probable cause.188 Linda Lye, aprivacy advocate with the ACLU, criticized the proposal:

If the sheriff wants a drone for search and rescue then thepolicy should say he can only use it for search and res-cue . . . . Unfortunately under his policy he can deploy adrone for search and rescue, but then use the data for untoldother purposes. That is a huge loophole, it’s an exceptionthat swallows the rule.189

Her points mirror the ACLU’s position in its December 2011white paper stating that drone use is acceptable so long as “the sur-veillance will not be used for secondary law enforcement purposes.”190

It is also similar to the language used in other proposals, such as thePreserving American Privacy Act of 2013, which would prohibit theuse of information gathered by a drone “as evidence against an indi-vidual in any trial, hearing, or other proceeding.”191

and rescue operations, and operations by the National Guard, but weaponized unmanned air-craft systems may never be deployed. Id.

187 See supra note 186. R188 Alameda County Sheriff’s Office, Draft General Order No. 6.15, http://nomby.files

.wordpress.com/2013/02/small-unmanned-aircraft-system-general-order-6-15-draft.pdf.189 Paul Detrick, Cops with Drones: Alameda Co., CA Weighs Technology vs. Privacy, REA-

SON.COM (Apr. 4, 2013), http://reason.com/reasontv/2013/04/04/cops-with-drones-technology-vs-privacy (quoting Linda Lye, ACLU privacy advocate).

190 STANLEY & CRUMP, supra note 22, at 16. R191 See H.R. 637, 113th Cong. (2013). Although the Act would provide a set of exceptions,

including one for emergencies, the language of the emergency exception as currently drafteddoes not clearly specify that inadvertent discovery of information unrelated to the emergencyjustifying the drone usage would be admissible. Id. It is likely that defense counsel in such a



A simple hypothetical can help to illustrate the problem with thisuse limitation, or the “secondary law enforcement” limitation. Imag-ine that law enforcement uses a drone to search for a lost hiker in astate park. This is a search and rescue mission that would fit withinthe public safety, emergency, or exigency exceptions in most legisla-tive proposals aimed at controlling drone usage.192 However, imaginethat during the course of the search for the lost hiker the drone ob-served a man stabbing a woman to death in the park. That collectionwould be entirely inadvertent because the goal of the flight was tosearch and rescue a lost hiker. As an inadvertent observation, sup-pressing the videotape of the stabbing in a trial against the stabberwould not serve to deter the police from using drones in the futurebecause they were not searching for an unrelated stabbing crime—they were searching for a lost hiker.193 Yet, the blanket use restric-tions found in various proposals circulating in state legislatures, Con-gress, and under the ACLU’s “secondary law enforcement purposes”standard would need to be suppressed against the stabber at trial be-cause it was gathered without a warrant.

Suppressing so-called secondarily gathered evidence doesn’t pro-tect privacy because inadvertent discovery is unexpected and there-fore cannot be deterred. Rather, suppressing such evidence merelyprotects a criminal, who, if observed from a helicopter, an airplane, orfrom the ground would face evidence of his crime. Under broadlyworded drone-focused privacy bills, however, such a criminal may bemore difficult to prosecute. It is difficult to see what public policy goalis furthered by suppressing evidence of a crime merely because theevidence was gathered from a drone instead of a helicopter. Do schol-ars and legislators arguing for such a requirement really want to be inthe position of making it harder to punish perpetrators of violentcrimes? If the discovery were genuinely inadvertent, there is little tono deterrent value that justifies suppressing such evidence.

D. Recognize the Nuanced Nature of Surveillance Law and theContext-Based Exceptions to the Warrant Requirement

Most scholars and advocates seeking to impose a statutory war-rant requirement on the use of drones have failed to argue for codifi-

case would seek to prohibit the admission of evidence in such a case by relying on the lack of aclearly specified exception.

192 See id.; supra note 186. R193 See, e.g., Hudson v. Michigan, 547 U.S. 586, 622 (2006) (“[T]he exclusionary rule pro-

tects more general ‘privacy values through deterrence of future police misconduct.’”).



cation of the exceptions to the warrant requirement and exclusionaryrule that courts have developed through decades of jurisprudence.194

Not allowing for the codification of such exceptions is a substantialfailure on the part of warrant-requirement advocates, making theirproposals nearly unworkable as they will leave courts to decide on acase-by-case basis whether all, some, or none of the existing excep-tions to the warrant requirement apply.

As the Supreme Court has noted, suppressing evidence has seri-ous consequences for the “truth-seeking and law enforcement objec-tives” of our criminal justice system, and as such should present “ahigh obstacle for those urging application” of the exclusionary rule,195

and should be “our last resort, not our first impulse.”196 Thus, at aminimum, if scholars continue to argue for a warrant requirement foraerial surveillance, the measure for when we should apply the exclu-sionary rule should not be whether a drone was used, but rather when“the benefits of deterrence [ ] outweigh the costs.”197

Because this Article rejects the idea of a warrant requirement,the passages below will briefly outline some of the exceptions andother procedural devices that should be considered and analyzedbefore any proposed warrant requirement for aerial surveillance istaken seriously.198

Rather than codify a blanket restriction on the use of any infor-mation gathered from a drone, legislators should codify a standing re-quirement that premises one’s ability to exclude evidence on whetherthe person raising the exclusionary claim was the purported target ofdrone surveillance. Thus, if law enforcement uses a drone to docu-ment illegal dumping of toxic waste by co-conspirator 1, nonpresentco-conspirator 2’s privacy rights were not violated, and 2 should nothave the ability to vicariously assert 1’s privacy rights to protect him-self from prosecution. Evidence gathered by drones should be admis-sible in proceedings short of trial such as grand jury proceedings,199

194 See supra note 181. R195 Pa. Bd. of Probation & Parole v. Scott, 524 U.S. 357, 364–65 (1998).196 Hudson v. Michigan, 547 U.S. 586, 591 (2006).197 Herring v. United States, 555 U.S. 135, 141 (2009).198 This list of exceptions was drawn from 1 JOSHUA DRESSLER & ALAN C. MICHAELS,

UNDERSTANDING CRIMINAL PROCEDURE chs. 19–20, 22 (6th ed. 2013).199 This is consistent with the Supreme Court’s approach to Fourth Amendment violations

in United States v. Calandra, 414 U.S. 338 (1974). There, the Court noted that “[a]llowing agrand jury witness to invoke the exclusionary rule would unduly interfere with the effective andexpeditious discharge of the grand jury’s duties.” Id. at 350. The Court concluded that “ex-tending the rule to grand jury proceedings is uncertain at best.” Id. at 351. “Such an extension,”



preliminary hearings,200 bail hearings,201 and other nontrialproceedings.

Evidence gathered by drones should also be admissible for im-peachment purposes, as there is little deterrent value in keeping suchimpeachment evidence out of a trial (as law enforcement is unlikely togather it solely for that purpose), and the use of evidence gathered bydrones for such a limited purpose furthers the truth-seeking processand deters perjury.202

If legislators impose a statutory warrant requirement on the useof drones, they should also codify directly, or by reference, the bodyof jurisprudence associated with the so-called good faith exception ar-ticulated in United States v. Leon203 and Massachusetts v. Sheppard.204

The good faith exception allows for the admission of evidence gath-ered pursuant to a defective warrant unless, based on objective facts,“a reasonably well trained officer would have known that the searchwas illegal despite the magistrate’s authorization.”205

Legislators should next make clear that the independent sourcedoctrine as articulated in Murray v. United States206 applies equally todrone-related surveillance. The independent source doctrine allowsfor the admission of evidence, despite police illegality, if the evidenceseized was not causally linked to the illegal police conduct.207

Legislators should codify the inevitable discovery rule articulatedin Nix v. Williams.208 In the context of drone surveillance, the rulewould operate to allow the admission of drone-gathered evidence in acriminal trial if the prosecutor can prove (by a preponderance of the

the Court said, “would deter only police investigation consciously directed toward the discoveryof evidence solely for use in a grand jury investigation.” Id.

200 This is consistent with Congress’s guidance in Federal Rule of Criminal Procedure5.1(e), which states in relevant part, that “[a]t the preliminary hearing, the defendant may cross-examine adverse witnesses and may introduce evidence but may not object to evidence on theground that it was unlawfully acquired.”

201 See 18 U.S.C. § 3142(f) (2012) (“The rules concerning admissibility of evidence in crimi-nal trials do not apply to the presentation and consideration of information at the hearing.”).

202 Contra James v. Illinois, 493 U.S. 307, 317–18 (1990) (arguing that disallowing use ofillegally obtained evidence for impeachment may in fact deter police misconduct and that anygains to truth-seeking may be offset by loss of probative witness testimony).

203 United States v. Leon, 468 U.S. 897 (1984).

204 Massachusetts v. Sheppard, 468 U.S. 981 (1984).

205 Leon, 468 U.S. at 922 n.23.

206 Murray v. United States, 487 U.S. 533 (1988).

207 See id. at 537–38.

208 Nix v. Williams, 467 U.S. 431 (1984).



evidence) that the evidence would have ultimately or inevitably beendiscovered by lawful means.209

Rather than suppress all fruit of drone surveillance, legislatorsshould codify the attenuation principles articulated in Nardone v.United States210 and Wong Sun v. United States.211 The Court in WongSun stated that when considering whether fruit of an unlawful searchshould be suppressed, a court must ask “whether, granting establish-ment of the primary illegality, the evidence to which instant objectionis made has been come at by exploitation of that illegality or insteadby means sufficiently distinguishable to be purged of the primarytaint.”212 Stated differently, at some point the fruit of the poisonoustree loses its potency. Legislators should consider the following fac-tors: (1) passage of time between the illegal search and the acquisitionof evidence, (2) intervening events and a lack of foreseeability that theillegal drone surveillance would result in the gathering of evidence,and (3) whether the initial illegal surveillance was a flagrant or delib-erate violation rather than an accidental one.213

E. Embrace Technology

Perhaps the biggest problem with a warrant requirement is that itfails to recognize that someday, surveillance from unmanned aircraftmay be more protective of privacy than manned surveillance. Tech-nology continues to evolve at such a rapid pace that it is possibledrones and other aerial surveillance technologies may enable targetedsurveillance that protects collateral privacy harms while still allowingfor the collection of evidence. Technology can further the goal of pri-vacy by using geofencing technology to only collect evidence fromspecific locations and using redaction programming to automaticallyobscure information (such as faces) at the point of collection.214 Crea-

209 Nix was a Sixth Amendment case, but courts have applied the fruits analysis to searches.See Stephen E. Hessler, Note, Establishing Inevitability Without Active Pursuit: Defining the In-evitable Discovery Exception to the Fourth Amendment Exclusionary Rule, 99 MICH. L. REV.238, 241–43 (2000) (discussing the Nix exception as applied to the Fourth Amendment).

210 Nardone v. United States, 308 U.S. 338 (1939).211 Wong Sun v. United States, 371 U.S. 471 (1963).212 Id. at 488 (quoting JOHN MACARTHUR MAGUIRE, EVIDENCE OF GUILT 221 (1959)).213 See Brown v. Illinois, 422 U.S. 590, 603–04 (1975).214 See Geofencing, TECHNOPEDIA http://www.techopedia.com/definition/14937/geofencing

(last visited Feb. 9, 2016) (“Geofencing is a technology that defines a virtual boundary around areal-world geographical area. In doing so, a radius of interest is established that can trigger anaction in a geo-enabled phone or other portable electronic device.”); Chris Hackett & MichaelGrosinger, The Growth of Geofence Tools Within the Mapping Technology Sphere, PDVWIRE-

LESS BLOG, http://corp.pdvwireless.com/the-growth-of-geofence-tools-within-the-mapping-tech-



tive policymakers can embrace technology by writing laws requiringthat aerial surveillance devices have systems to protect privacy.215

For example, imagine that the police receive a tip about mari-juana growing in the backyard of 123 Main Street. They dispatch ahelicopter to gather aerial photographs of the 123 Main Street prop-erty from an altitude of 700 feet. While the police are overheadphotographing 123 Main Street, they look down and see a woman sun-bathing in the adjacent property at 125 Main Street. Though the inad-vertent observation of the woman at 125 Main Street does not violateher Fourth Amendment rights, she will likely consider it an offensiveintrusion that violates her personal expectation of privacy (even if it’snot one that society, per Supreme Court jurisprudence, is willing todeem reasonable).216 Now, imagine the same collection scenario, thistime conducted by a drone or a camera on a manned helicopter withsoftware that is programmed to protect privacy. Prior to the missionthe aircraft is instructed to only document the ongoing activities at 123Main Street. The software could be required to automatically redactany additional information gathered from adjoining properties (suchas 125 Main Street, the home of our hypothetical sunbather). Further-more, legislators could require that software automatically redact thefaces of individuals.217 The redaction could be removed at a later date,perhaps after a showing of reasonable suspicion or probable cause(the particular standard to be determined by the legislature) to be-lieve that the auto-redacted person’s face is important because theyare or were involved in criminal activity. If a state or local govern-ment required that aircraft engaged in aerial surveillance be coded forprivacy, the rights of the adjacent sunbather and any other inadver-tently observed individuals would be protected. Policies requiringthat drones be coded for privacy could evolve society to the pointwhere unmanned drones are required when manned flights mightplace law enforcement officers in a situation where they could makeunwanted observations of innocent people. Warrant requirements do

nology-sphere/ (last visited Feb. 9, 2016) (“Geofencing also represents a critical element withintelematics hardware and software. It allows system users to draw zones around places of work,customer sites and secure areas.”).

215 See, e.g., Rule, supra note 5, at 201 (recommending simple GPS software and registra- Rtion systems to track drones and retrieve their information).

216 See supra Sections II.A–B.217 See Eric Pfeiffer, How a Seattle Programmer Used Public Records Laws to Push Police

to Fix a Surveillance Video Tech Headache, GOV’T EXEC. (Jan. 8, 2015), http://www.govexec.com/state-local/2015/01/seattle-police-camera-video-redaction/102483/ (discussing “fully autono-mous” software code that “rapidly identifies red-flag items” in surveillance videos “and high-lights them for redaction”).



little to allow this type of privacy-protective technology to develop;they merely act as a soft ban on drones. The next Part argues thatprivacy can be protected without resorting to a warrant requirement;it argues that narrowly tailored reforms can, in fact, be more protec-tive of privacy than warrants.

IV. REFORMS

This Part proposes five reforms. Those reforms are focused ondefining vantage points from which drones should be prohibited fromoperating, placing limits on how long the government may surveil par-ticular persons from the air, requiring data-retention procedures thatincrease procedural protections over time, urging the adoption oftransparency and accountability measures, and institutionalizing newforms of oversight.

A. Defining Property Rights Is a Necessary but Insufficient Part ofReform

The uncertainty associated with landowner rights in the airspaceimmediately above their property has raised two problems. First,there is little clarity regarding where low-altitude aerial surveillanceby the government would violate the Fourth Amendment. Is it at 500feet if by a fixed-wing aircraft or 1000 feet?218 Is it 400 feet if by ahelicopter? In Riley, the Court said that the surveillance conducted at400 feet by a helicopter did not require a warrant, but it left open thepossibility that surveillance at a lower altitude could be acceptable.219

Riley’s holding raises the question, what about a flight at 350 feet or325? What about 200 feet or the eighty-three feet from Causby? Thecaselaw on whether this would be a lawful observation is not clear, butit is difficult to see how a court applying the principles of Riley wouldfind substantive differences from an observation at 200 feet versus oneat 400 feet. That is because the Supreme Court’s jurisprudence tells usto look at whether the observation took place from “navigable air-space”—a vantage point from which any member of the public couldmake an observation.220

Given the FAA regulations that limit the heights at which peoplemay fly aircraft, a court following Riley might find it plausible thataircraft flown at 200 feet would also be at a public vantage point. For

218 Notably, FAA regulations don’t clearly answer this question; the minimum altitude var-ies based on how congested an area is. See discussion infra Part IV.A.2.

219 See Florida v. Riley, 488 U.S. 445, 451–52 (1989).220 See id. at 451.



helicopters, navigable airspace includes 200 feet above ground level solong as the pilot is not creating a hazard.221 However, anything below200 feet would likely be hazardous, as the FAA does not require thecharting or lighting of obstacles that are lower than 200 feet inheight.222 FAA rules and guidelines also require that operation ofdrones and model aircraft take place below 400 feet,223 and the pro-posed rules for commercial drone operations require those flights totake place below 500 feet.224 Because operation of aircraft at 200 feetwould be at a public vantage point and thus permissible under Riley’sinterpretation of the Fourth Amendment, the onus will be on land-owners rather than aircraft operators to prevent aerial observationsfrom certain vantage points. A legislative solution for aerial surveil-lance must address this issue.

A second problem arising out of the uncertainty of a landowner’sairspace rights is the issue of protecting one’s privacy against private,nongovernmental drone operators. While private drone use is beyondthe scope of this Article, the right to exclude the government fromconducting aerial surveillance is inextricably tied to whether the pub-lic would have had a right to make the observation the police made.225

The linkage of these two concepts suggests that a property-rights ap-proach may provide a way to harmonize these separate policy con-

221 See 14 C.F.R. § 91.119 (2015), which reads:

Except when necessary for takeoff or landing, no person may operate an aircraftbelow the following altitudes:

(a) Anywhere. An altitude allowing, if a power unit fails, an emergency land-ing without undue hazard to persons or property on the surface.

(b) Over congested areas. Over any congested area of a city, town, or settle-ment, or over any open air assembly of persons, an altitude of 1,000 feet abovethe highest obstacle within a horizontal radius of 2,000 feet of the aircraft.(c) Over other than congested areas. An altitude of 500 feet above the surface,except over open water or sparsely populated areas. In those cases, the air-craft may not be operated closer than 500 feet to any person, vessel, vehicle, orstructure.(d) Helicopters, powered parachutes, and weight-shift-control aircraft. If theoperation is conducted without hazard to persons or property on the surface—

(1) A helicopter may be operated at less than the minimums prescribed inparagraph (b) or (c) of this section, provided each person operating thehelicopter complies with any routes or altitudes specifically prescribed forhelicopters by the FAA . . . .

222 The FAA requires notice of “[a]ny construction or alteration that is more than 200 feet”above ground level. 14 C.F.R. § 77.9(a) (2015). Such notice is used by the FAA to “[d]etermineappropriate marking and lighting recommendations.” Id. § 77.5(c)(3).

223 See Interpretation of the Special Rule for Model Aircraft, supra note 37, at 36,172. R224 See NPRM, supra note 8, at 9562. R225 See supra Part II.A–B.



cerns (specifically surveillance by private actors and surveillance bypublic actors) and thereby address most of the concerns associatedwith aerial surveillance.

Although state and local laws almost exclusively govern mattersinvolving ownership of airspace at low altitudes, those laws are stillnot comprehensive. Arizona State law professor Troy Rule, one ofthe first scholars to analyze property rights in the context of drones,notes the stark contrast in the clarity of laws delineating propertyrights on surface land and the laws governing low-altitude airspace.226

The surface landowners, Professor Rule explains, have an unambigu-ous right to exclude trespassers and other intruders from entering theclearly defined boundaries of surface land.227 Conversely, “[t]he com-mons regime that governs high-altitude airspace is in many ways theantithesis of the private property regime that applies to surface land:no one owns high-altitude space, and everyone is welcome to use it ifthey follow certain rules.”228 Yet the low-altitude airspace betweenthe privatized surface land and high-altitude commons has largely un-defined rules.229 State and local governments should act to clarify therights of landowners in the zone between the land and high-altitudeairspace.230

State and local governments that act to craft laws clarifying prop-erty rights in low-altitude airspace could do so by arguing they aremerely codifying long-standing property law. In so doing, state andlocal governments could rely on the Causby Court’s declaration that“the flight of airplanes, which skim the surface but do not touch it, isas much an appropriation of the use of the land as a more conven-tional entry upon it.”231 Such flights, the Court said, “are in the samecategory as invasions of the surface.”232

If low-altitude flights above a landowner’s property are akin towalking onto that property, then for Fourth Amendment purposes,police drones might be deemed to walk on any property that they fly

226 See Rule, supra note 5, at 174–75 (“Unlike the murky set of legal rules governing low- Raltitude airspace, the laws delineating property rights in the surface land could hardly beclearer.”).

227 Id. at 176.228 Id. at 180 (footnote omitted).229 Id. at 182.230 Professor Rule suggests a similar solution, namely that “state legislatures could . . .

enact[ ] new laws that give landowners clear rights to exclude drones or other aircraft from en-tering into the low-altitude airspace above their land up to the existing navigable airspace line.”Id. at 187.

231 United States v. Causby, 328 U.S. 256, 264 (1946).232 Id. at 265.



over at a low altitude. If legislators aim to categorically prevent war-rantless police-drone flights over private property, legislators couldmerely craft statutes that provide property owners with clearer rightsto exclude the public from private land; the Causby Court’s decisionwould automatically extend to the airspace immediately above thatproperty.

Granted, police could evade this rule by asking a neighbor forpermission to fly above his adjacent property to obtain an adequatevantage point, just as police (or private citizens) may ask a neighbor topermit observation from a second-floor window into neighboringproperty. Similarly, such a rule would not preclude flights over publicland, such as sidewalks and streets, but local zoning laws could addressflights over public land.

1. Property Rights Should Be Defined

The proposal set forth below will preclude the police from flyingat low altitudes directly over a greenhouse like the one in Riley ordirectly over a backyard like that in Ciraolo, but it would preserve theability of the police to conduct those already lawful surveillance activi-ties at or near the altitudes at which they were conducted in Riley(above 400 feet) and Ciraolo (above 1000 feet). In essence, the pro-posal set forth below is a status quo solution.

What might such a statute look like? To preserve privacy, thelandowner’s right must extend high enough to make the exclusion ef-fective. However, to preserve a right of transit for drones (such asAmazon or Google delivery drones, a mapping and real estate drone,or model aircraft), the right of exclusion cannot extend all the way upto the manned navigable airspace line (500 feet in most locations, 1000feet in congested areas).233

This Article argues that an appropriate statute would state thatlandowners own the airspace above their property—up to 200 feetabove ground level. In most locations, that will provide the land-

233 For a contrary approach that extends the right to the public navigable airspace line, seeRule, supra note 5, at 187–88. (“To preserve a level of privacy and safety comparable to what Rlandowners enjoyed prior to the drones era, laws clarifying landowner airspace rights shoulddefine these rights as extending all the way up to the navigable airspace line of 500 feet above-ground in most locations. A rule defining exclusion rights as covering only 100 feet or 200 feetabove the ground would arguably be insufficient because it would allow small drones to cheaplyhover above land, potentially violating landowners’ privacy or threatening their safety fromthose altitudes. . . . Because navigable airspace designations can vary by location, the exactheights of each parcel’s exclusion rights could initially be established based on the FAA’s ex-isting navigable airspace designations.” (emphasis added) (footnote omitted)).



owner with airspace rights that extend to more than five times theheight of the average two-story home.234 By virtue of owning this col-umn of land up to 200 feet, the landowner will have a right to excludethe general public (and therefore the police) from flying above hisproperty in a way that will interfere with his enjoyment of the land.

This proposal draws the line at 200 feet for a few reasons. First,200 feet is an appropriate line to draw because the FAA has largelyignored the construction of buildings and other structures that mightpose an obstacle to air transit when those obstacles are less than 200feet tall.235 On the other hand, the construction of obstacles that are200 feet above ground level requires notice to be filed with the FAApursuant to 14 C.F.R. § 77.9.236 Those structures below 200 feet havebeen the sole province of local zoning authorities. This suggests thatin the low-altitude airspace—defined here as airspace below 200feet—the FAA has largely ceded the field to local authorities. This isan important issue as a local law that extends the property owner’srights too far into the airspace may face a preemption challenge. Sec-ond, this proposal will provide a 200-foot buffer space between theceiling of the property owner’s airspace (200 feet) and the ceiling ofmodel aircraft airspace (which allows recreational flights up to 400feet in altitude), and a 300-foot buffer space between the ceiling of theproperty owner’s airspace (200 feet) and the ceiling of the proposedcommercial drone airspace (500 feet).237 This will allow for a transitzone for model aircraft and drones. Such a transit zone will allowmodel aircraft and commercial drone operators to traverse the air-space above private property without fear of violating the landowner’sproperty rights, permit space for development of future drones thatmight take advantage of the transit zones, and simultaneously avoid

234 In circumstances where property is located adjacent to a slope, this proposal may under-protect. For example, depending on the degree of slope, a drone flying between 200 and 500 feetabove the ground of the sloped terrain and equipped with a camera and recorder could have anunobstructed, intimate eye and earshot into yards and homes on the slope or ridge top. Legisla-tors in jurisdictions where terrain may pose this policy problem may want to specify the distancedrones must remain from homes, or they may want to limit drone flights over adjacent publicproperty.

235 See 14 C.F.R. § 77.17(a)(2) (2015).236 See supra note 222. R237 See Interpretation of the Special Rule for Model Aircraft, supra note 37, at 36,172 (400- R

foot ceiling for model aircraft); NPRM, supra note 8, at 9562 (500-foot ceiling for commercial Rdrones); see also Federal Aviation Administration, Fact Sheet—Unmanned Aircraft Systems(UAS) (Jan. 6, 2014) (on file with The George Washington Law Review) (“Recreational use ofairspace by model aircraft is covered by FAA Advisory Circular 91-57, which generally limitsoperations to below 400 feet above ground level and away from airports and air traffic.”).



creating circumstances where drone operators will need to choose be-tween violating FAA regulations by traversing into manned airspaceabove or violating property rights below.

By creating a space from 200 feet to 500 feet, this proposal doesadmittedly create a space where law enforcement drones could oper-ate in a way that might cause nuisances or violate privacy. The alter-native would be to allow landowners to exclude all aircraft from acolumn of space above their lands, upwards to the lower reaches ofmanned aviation (500 feet in some areas, 1000 feet in others).238 Theproblem with that approach is that it places all of the benefits on theprivacy and property side of the ledger without recognizing the signifi-cant costs that will be imposed on innovation and future beneficialuses of drones.

Moreover, excluding drones from the property line to themanned aviation line does very little to protect privacy, as moving thelimit to 500 feet will likely have a minimal impact on the surveillancecapabilities of drones, which at 200 feet may already be operating atthe outer limits of their camera equipment.239 Although there aretechnological reasons for rejecting the extension of the property rightto the manned aviation line, Supreme Court jurisprudence also sug-gests that limiting observations (from manned or unmanned aircraft)to 200 feet is a near status quo solution. In Riley, a warrantless heli-copter observation from 400 feet was deemed constitutional, with theCourt leaving open the possibility that observations from lower alti-tudes might also be constitutional.240 Thus, this proposal to place theline at 200 feet provides greater protections than those in Riley byproviding greater precision. This proposal creates a bright-line rule at200 feet, making it clear that any aerial intrusion at or below that alti-tude would violate the landowner’s property rights. Surveillance be-low 200 feet would be a nonpublic vantage point and would violatethe Fourth Amendment if information were gathered without awarrant.

Thus, while drones and helicopters might still conduct surveil-lance at 200 feet, drone surveillance at that altitude will be far lessintrusive than helicopter surveillance at 400 feet because a helicopter’s

238 Professor Rule argues for such an approach. Rule, supra note 5, at 187. R239 David Kovar, What Can a Drone Actually “See”?, INTEGRIOGRAPHY (Aug. 23, 2015),

https://integriography.wordpress.com/2015/08/23/what-can-a-drone-actually-see/ (visually de-picting a man in a field photographed with the popular DJI Phantom and showing that at 200feet “[i]t is hard to find any identifying details of a human . . . above 50 feet” and that “at 200feet it would be hard to identify the human if you did not know what you [were] looking at”).

240 See Florida v. Riley, 488 U.S. 445, 451–52 (1989).



larger size enables it to carry far more sophisticated surveillanceequipment. Concomitantly, observations from drones at 200 feet willbe far less intrusive than observations from helicopters flying at thesame altitude.241 Although some may express concerns that a dronemay persistently surveil property by hovering for long periods, thatargument fails for two reasons. First, law enforcement likely cannotafford technology capable of hovering for long periods.242 Instead,they will likely use systems with flight times of less than one hour.243

Second, persistent surveillance is a distinct concern, and to protectagainst it, this Article makes recommendations in the following Sec-tions that are directed at its specific harm (whether conducted frommanned or unmanned aircraft) rather than making drone-specificrecommendations.

By defining property rights in the manner described above (ex-tending rights up to 200 feet) courts will be in a position where theycan readily adjudicate claims asserting that an aerial observation vio-lated the Fourth Amendment. To conduct such an inquiry a court willexamine whether an officer had a right to be in the place where hemade the observation. Stated differently, the court will look atwhether the police observation was from a public vantage point. An-swering either of those questions will turn on an analysis of whetherthe observation took place from a vantage point that violates the land-owner’s right to exclude and therefore violates his reasonable expecta-tion of privacy. When conducting this analysis, a court need only lookto the statute and facts associated with the observation. With drones,those can be readily discernible because most law enforcement dronescarry GPS software that pinpoints and documents location andaltitude.244

2. “Navigable Airspace” Is No Longer a Helpful Reference Point

Some scholars and legislators have begun to argue for a property-rights approach, but rather than establishing a defined ceiling in feet,

241 See discussion infra Part IV.B (addressing threat of pervasive surveillance whereby lawenforcement might park a drone or other aircraft over a landowner’s property for extendedperiods of time).

242 See supra note 48. R243 See supra note 48. R244 MCNEAL supra note *, at 16. “The salutary effect of this approach is that civil suits for

unlawful operation of drones above a landowner’s property by voyeurs and other onlookers willbe adjudicated with reference to clearly defined property rights, allowing courts to evaluate tres-pass and other claims.” Id. “States may need to update their trespass laws to address aerialtrespass. For example, many jurisdictions define trespass as “entering on” or “remaining on”property[;] legislatures may need to clarify that property includes airspace.” Id. n.41.



as this Article advocates, those reformers have argued for an exten-sion of the exclusionary zone up to the “navigable airspace.”245 Asdiscussed in the Introduction to this Article, this is a difficult line todraw due to the changing nature of FAA regulations. That is why thisArticle favors specifying the exclusionary zone in feet.246

To illustrate the point more clearly, consider the problems thatwill arise with California’s proposed drone trespass bill, a newly intro-duced piece of legislation that attempts to define airspace rights byreferencing FAA regulations, rather than by clearly specifying an alti-tude. In late January 2015, California State Senator Hannah-BethJackson introduced SB 142, a drone trespass measure that aims to pro-hibit the unauthorized use of unmanned aerial vehicles in airspace di-rectly over private property.247 The bill will be unenforceable ifenacted as drafted because it does not define the airspace directly;rather, it makes reference to “navigable airspace.”248 It states:

(a) A person knowingly enters onto the land of another per-son . . . if he or she operates an unmanned aerial vehicle

245 See Rule, supra note 5, at 187: RToday, as drone technologies create ever more opportunities for new and valuableuses of low-altitude domestic airspace, pressure is mounting once again for prop-erty laws to adapt. Arguably, state legislatures could assist in that process by enact-ing new laws that give landowners clear rights to exclude drones or other aircraftfrom entering into the low-altitude airspace above their land up to the existingnavigable airspace line—a height of 500 feet above the ground in most areas. Suchstatutes could specify that these exclusion rights were largely equivalent to rightsthat landowners have long enjoyed on the surface. Holders of such rights would beentitled to bring actionable trespass claims against operators of drones that invadedtheir column of airspace simply by proving that the operator intentionally flew thedrone into their space. Takings law rules applicable to government invasions onsurface land would likewise be extended to low-flying government aircraft.

246 Oregon has taken a similar approach, as Professor Rule’s research notes:At least one state legislature has already enacted legislation giving landowners ba-sic drone exclusion rights within a defined column of airspace above their parcels.An Oregon state statute enacted in 2013 included provisions creating a new civilclaim for drone trespass. These provisions generally allow real property owners tobring claims against anyone who flies a drone over their parcels a second time at aheight of less than 400 feet after being asked not to do so. Plaintiffs who prevailunder Oregon’s drone trespass statute can recover treble damages for any injuriesto persons or property caused by unwanted drones and can also recover attorneyfees in cases where the amount pleaded was less than $10,000. Although Oregon’sdrone trespass law is fairly narrow in scope, it is at least a step in the right directiontoward a simpler, clearer set of rules capable of more effectively governing droneactivity in low-altitude airspace.

Id. at 188 (footnotes omitted).247 S.B. 142, 2015-2016 Leg., Reg. Sess. (Cal. 2015), http://leginfo.legislature.ca.gov/faces/

billNavClient.xhtml?bill_id=201520160SB142.248 McNeal, supra note 136. R



below the navigable airspace, as defined in paragraph (32) ofsubsection (a) of Section 40102 of Title 49 of the UnitedStates Code, overlaying the property.(b) A person wrongfully occupies real property and is liablefor damages . . . if, without permission, he or she operates anunmanned aerial vehicle below the navigable airspace, as de-fined in paragraph (32) of subsection (a) of Section 42102 ofTitle 49 of the United States Code, overlaying the realproperty.249

In layman’s terms, the bill attempts to say that if an individualflies a drone over someone’s property, and below “navigable air-space” as that term is defined in federal law, it is a trespass in Califor-nia. At first blush, the bill sounds like it will address drone flightsover private property, but the proposal and proposals like it are des-tined to fail for three reasons.

First, the term navigable airspace does all of the heavy lifting inSB 142 and similar proposals relying on the term. Federal law defines“navigable airspace” as “airspace above the minimum altitudes offlight prescribed by regulations under this subpart and subpart III ofthis part, including airspace needed to ensure safety in the takeoff andlanding of aircraft.”250

While 500 feet is a useful rule of thumb for defining navigableversus nonnavigable airspace, regulations governing navigable air-space are actually a bit more complex. Helicopters, for example, areexempted from minimum altitude regulations “[i]f the operation isconducted without hazard to persons or property on the surface.”251

For fixed-wing aircraft, the rule is that, for over congested areas, theminimum altitude is “1,000 feet above the highest obstacle within ahorizontal radius of 2,000 feet of the aircraft.”252 For noncongestedareas, other than “over open water or sparsely populated areas,” theminimum is 500 feet.253 Over open water and sparsely populated ar-eas, “the aircraft may not be operated closer than 500 feet to any per-son, vessel, vehicle, or structure.”254 Moreover, within certaindistances of certain classes of airports and airspace, altitude restric-tions below 500 feet may also be in place.

249 Id.250 49 U.S.C. § 40102(a)(32) (2012).251 14 C.F.R. § 91.119(d) (2015).252 Id. § 91.119(b).253 Id. § 91.119(c).254 Id.



These examples drawn from FAA regulations are not intended tobe a comprehensive overview of aviation regulations; rather, theyhighlight the complexities in the law, defining what exactly is naviga-ble airspace. The complexity associated with defining navigable air-space means that legislative proposals that use navigable airspace as aproxy for what constitutes a lawful or unlawful vantage point willhinge on so many difficult variables that the laws will be almost im-possible to implement.

The second problem with defining lawful vantage points (orplaces where one might be trespassing) by making reference to navi-gable airspace is that the definition in federal regulations also includesthe airspace needed to ensure safety in the takeoff and landing of air-craft. In public statements, the FAA has stated that navigable air-space extends down to the ground, at least in circumstances whereaircraft are taking off and landing.255 But, the FAA has recently be-gun applying that concept to drones and has said that the navigableairspace for drones is anywhere a drone can be operated.256 Accord-ing to Jim Williams, a spokesperson for the FAA’s unmanned aircraftintegration office:

If you are flying in the national airspace system, FAA regula-tions apply to you. The definition of the national airspacesystem is anywhere where aircraft can safely navigate. So bydefinition then, these quadcopters are what have extendedthe national airspace down to the ground. . . . That’s just thesituation. I’m not saying it’s ideal, but that’s what the lawssay and that’s what the rules say.257

What this means is that a drone flying over a California resident’sproperty would never be trespassing under the terms of SB 142, norwould it be making an observation from a vantage point where it didnot have a lawful right to be because the FAA interprets navigableairspace as anywhere an aircraft can operate. Under the FAA’s inter-pretation, proposals tying rights to FAA regulations simply provide norights—drones will always be operating in, not below, the navigableairspace.

Third, the NPRM specifically allows for drone flights from zeroto 500 feet above ground level. As the FAA wrote:

[T]he FAA proposes, in § 107.51(b), to set an altitude ceilingof 500 feet above ground level (AGL) for small UAS opera-

255 McNeal, supra note 136. R256 See McNeal, supra note 101. R257 Id.



tions that would be subject to this proposed rule. The FAAchose to propose 500 feet as the vertical area-of-operationboundary because most manned aircraft operations takeplace above 500 feet.258

In the NPRM, the FAA proposes a 500-foot ceiling for the navi-gable airspace for drone operations with the floor of that navigableairspace set at the ground.259 Thus, if the FAA’s proposed regulationsare adopted as written, drones will never be operating below naviga-ble airspace. That means proposals that tie rights to the definition ofnavigable airspace will never be triggered. The solution to this legalmorass is to define the airspace in feet, and that is why I argue itshould extend upwards to 200 feet above the landowner’s property.

It is important to note that establishing the property line at 200feet is only a partial solution. Merely adopting an airspace right with-out the other reforms outlined in this Article will do very little to ad-dress anything other than drone surveillance—and will only do so fora short period of time as technology is rapidly advancing. As this Sec-tion highlighted, manned aircraft are capable of surveillance from ex-tremely far distances, such that they need not be located at a lowaltitude to conduct surveillance. Eventually technology will advanceto allow for drone surveillance from higher altitudes. That’s why thesubsequent recommendations in this Article go beyond pushing prop-erty rights higher but also address the duration of government surveil-lance, data-retention procedures, and transparency and accountabilitymeasures associated with surveillance.

This first proposal is not intended to ban aerial surveillance;rather, it is intended to place aerial surveillance from drones andmanned aircraft on equal legal footing. This proposal also ensuresthat policymakers remain focused on the harms of aerial surveillance,not merely the platform from which the surveillance takes place.

B. Place Limits on How Long the Government May Surveil fromthe Air

Even if policymakers establish property rights in airspace, thebuffer airspace between the property owner’s airspace and the floor ofmanned navigable airspace will allow law enforcement to sit in thatarea and conduct surveillance.260 Moreover, eventually autonomousdrones may be developed that will be able to continuously follow one

258 NPRM, supra note 8, at 9562. R259 Id.260 See supra Part IV.A.1.



particular person, tracking their movements.261 To address these con-cerns, policymakers should focus on controlling the duration of sur-veillance.262 Doing so will limit two feared harms: First, duration-based limits on aerial surveillance will address the possibility thatdrones or other technologies will enable the police to follow individu-als and monitor their day-to-day activities. Second, duration-basedlimits will address the possibility that drones or other aircraft will beused to hover directly above a landowner’s property for lengthy peri-ods of time monitoring an individual’s day-to-day activities. Ofcourse, these two forms of persistent surveillance can be conductedwith manned or unmanned aircraft, therefore an appropriate reformshould not focus on the technology (a drone, for example) but ratheron the duration of surveillance. In other words, the target of reformsshould be the harmful surveillance, not the platform from which thesurveillance can be conducted.

Crafting legislation that places aggregate limits on how long lawenforcement may surveil specific persons or places can protect againstthe possibility of persistent surveillance. Such a legislative schememight look like this:

• Aerial surveillance of a person may continue for sixty min-utes in any seven-day period at the officer’s discretion.

• Aerial surveillance extending from sixty minutes to forty-eight hours in any seven-day period may only take placewith a court order and reasonable suspicion.

• Aerial surveillance of longer than forty-eight hours in anyseven-day period is permissible only when accompanied bya warrant and probable cause.263

The specific duration on which legislators may settle (and the pe-riod of aggregation) will depend on whether a jurisdiction places ahigher value on privacy or the efficiency of law enforcement. Thisreform is focused on surveillance of a specific person. If surveillanceof widespread areas is occurring, legislators may want lengthier limits.

261 See, e.g., Ben Coxworth, HEXO+ Drone Autonomously Follows the Action, for Under$500, GIZMAG (June 16, 2014), http://www.gizmag.com/hexo-plus-autonomous-drone/32560/; StuRobarts, AirDog Drone Automatically Follows You and Films Your Sporting Feats, GIZMAG

(June 17, 2014), http://www.gizmag.com/airdog-auto-follow-action-sports-drone/32576/.262 I recognize that this does nothing to address surveillance from satellites, but state and

local governments are unlikely to engage in widespread surveillance from satellites as the tech-nology is not readily accessible and does not provide real-time information.

263 This recommendation is adapted in part from Christopher Slobogin, Making the Most ofUnited States v. Jones in a Surveillance Society: A Statutory Implementation of Mosaic Theory, 8DUKE J. CONST. L. & PUB. POL’Y SPECIAL ISSUE 1, 24 (2012).



For example, limiting aerial surveillance to sixty minutes unless ac-companied by a warrant would mean that law enforcement could notmonitor specific events such as the Boston Marathon. Such a limita-tion is likely not a desired policy outcome, and policymakers shouldbe careful to craft limitations in such a way that they address the harmof persistent surveillance (tracking of individuals) versus area or per-vasive surveillance (to ensure public safety) or event-basedsurveillance.

Although policymakers may disagree as to what amount of timeto choose, carefully crafting duration-based rules for manned or un-manned surveillance is a superior approach to rules that focus merelyon drones, as such technology-centric approaches will oftentimes beriddled with blanket bans and exceptions.264 By legislating with a fo-cus on persistent surveillance, legislators can create rules based onclearly defined durational limits, thus creating public policy that is eas-ier to follow, “easier for courts to adjudicate, and doesn’t allow forloopholes based on technology.”265

C. Adopt Data-Retention Procedures That Require HeightenedLevels of Suspicion and Increased Procedural Protectionsover Time

“Many critics of drones raise the legitimate concern that the gov-ernment’s collection of aerial imagery and video will enable pervasivesurveillance that allows the government to know what all citizens aredoing at all points in time.”266 This concern about the governmentwarehousing information about individuals that may be accessibleyears after its collection is not unique to drones, but it is neverthelesstroubling as it may allow the government to review footage years afterits collection, revealing the most intimate details about a person’s life.While this is a recurring theme in critiques of all video and still im-agery collection, it is one that can be remedied by encouraging legisla-tors to adopt policies that address collection and retention ofinformation in a way that focuses on the information that is collected,how it is stored, and how it is accessed, rather than the particular tech-nology used to collect the information. Thus, while this Part of the

264 To see the perils of a process riddled with exceptions, consider the bill that the Texaslegislature passed, which has no fewer than twenty-two exceptions for drone use with carve-outsfor agricultural interests, electrical companies, oil companies, real estate brokers, and others.MCNEAL, supra note *, at 18 n.43 (citing Texas Privacy Act, ch. 1390, § 423.002, 2013 Tex. Gen.Laws 3691, 3691–92).

265 Id.266 Id.



Article speaks specifically about drones, the principles articulatedhere apply to all forms of video and imagery collection.267

Legislators should enact retention policies and procedures thatmake it more difficult for the government to access information astime passes, doing so will protect against pervasive surveillance andwarehousing of data about citizens. Data should also have an expira-tion date, such that information collected by the government shouldbe destroyed at the end of a predetermined period of time. The spe-cific duration of time and processes may be subject to debate and mayeven need to be recalibrated as the public learns more about whatworks and what does not work, but the key is to ensure that all proce-dures and timelines are legislatively determined. Creating clear direc-tives and embedding them in statutes will ensure these procedures andtimelines cannot be modified by individual agencies. To protect therights of individuals, the information gathered and stored should beexempt from sunshine act requests, but the fact of collection practicesshould not be exempt, and of course the actual information gatheredshould be fully discoverable in any criminal prosecution.268

A few procedural ideas are outlined below that will form the bulkof any responsible retention procedure:

At the moment of collection up to 30 days after collection,information should be treated like any other contemporane-ous or near contemporaneous observation. Agents of gov-ernment should be able to monitor aerial surveillance in realtime or near real time just as they observe CCTVs in realtime or near real time. This 30 day window will allow lawenforcement to respond to immediate or nearly immediatecomplaints about violations of the law. After 30 days havepassed from initial collection, information gathered from ae-rial surveillance should be moved from servers openly acces-sible by law enforcement to servers that are only accessiblewith a court order and a showing of reasonable suspicion.After 90 days have passed from initial collection, policeshould not be allowed to access information stored on serv-ers without a court order and a showing of probable causethat indicates that the information contained on the serverscontains evidence of a crime. All information stored on serv-

267 Id.268 Id. at 18–19. Note that, although I argue the information gathered should be exempt

from sunshine act requests, the transparency recommendations below contend that the fact ofcollection and the government’s use of aerial surveillance technology should be subject to trans-parency and accountability reforms and heightened oversight. See infra Section IV.D.



ers should be automatically deleted after a period of time sothat the government does not maintain a long term archiveof information about individuals. That period of time maybe as short as 120 days, but should not be longer than fiveyears.269

As with prior proposals, these limits are general guidelines withinherent policy trade-offs. A jurisdiction may value law enforcementprerogatives over privacy and may choose to place a greater emphasison having data accessible for longer periods of time without a showingof cause and might replace the thirty-day limit with a sixty-day limit.That decision might enhance the value of aerial surveillance data tolaw enforcement, but it would also impose a civil liberties cost. Thosetypes of decisions are best calibrated at the local level where legisla-tors can gauge their particular crime levels and their constituents’desires for privacy.270

D. Adopt Transparency and Accountability Measures

Regardless of whether legislators follow the recommendations inthis Article or choose to follow the ill-conceived warrant-based ap-proach, transparency and accountability measures should be requiredfor government use of aerial surveillance devices and the retention ofcollected imagery. “Transparency and accountability measures maybe more effective than suppression rules or warrants for controllingand deterring wrongful government surveillance. To hold law en-forcement accountable, legislators should mandate that the use of allaerial surveillance devices (manned or unmanned) be published on aregular basis (perhaps quarterly) on the website of the agency operat-ing the system.”271

Publishing usage logs encourages accountability, as does publish-ing detailed information about who operated the system, when it wasoperated, where it was operated (including GPS coordinates), andwhat was the law enforcement purpose for the operation.272 To fur-ther leverage the benefits of technology in the public interest, legisla-

269 Id. at 19.270 I say “might” enhance the law enforcement value because as the amount of data in-

creases, law enforcement will face challenges analyzing that data. Cf. Sandra I. Erwin, TooMuch Information, Not Enough Intelligence, NAT’L DEF. MAG., May 2012, at 26, 28 (explainingthat “avalanches of data” created by military aircraft, sensors, and ISR platforms are never fullyanalyzed and converted into intelligible reports because there is not enough manpower and au-tomated analysis algorithms are not yet functional).

271 MCNEAL, supra note *, at 19.272 Id.



tors may even mandate that unmanned systems operating in theirjurisdictions come equipped with software that allows for the easy ex-port of flight logs that contain this information. Exporting logs in aneasily readable format will allow privacy advocates and concerned citi-zens to closely monitor how aerial surveillance devices are being used,enabling the political process as a check that will hold governmentoperators accountable.273

Granted, such a transparency-focused approach may impose costson law enforcement, and accordingly, legislators should make effortsto allow the agency operating the drone to keep their usage logs confi-dential until the investigation is closed. However, the agency shouldbe required to make the logs public within thirty days of the close ofan investigation. To facilitate public accountability legislators shouldmandate that agencies publish all logs in an “open and machine-read-able format consistent with the President’s Executive Order of May 9,2013.”274

There is anecdotal evidence suggesting that a “flight log” ap-proach works. For example, in the United Kingdom police depart-ments published their helicopter flight logs on their webpage, withsome even live-tweeting their helicopter’s activities.275 Public watch-dog groups in the United Kingdom have cropped up to take advan-tage of this transparency: they monitor police activity, with some evensolely focusing on monitoring the activity of police helicopters.276

“These groups, and their respective websites, act as [ ] forum[s] fornoise and privacy complaints from various individuals across the[United] Kingdom, and several of these groups organize and lobbyMembers of Parliament [ ] to pass legislation restricting helicopter fly-overs.”277 The advocacy that these groups generate “appear[s] to belargely responsible for the recent trend of many UK police depart-ments publishing their helicopters’ flight logs, or even creating Twitter

273 Id. at 19–20.274 Id. at 20; see Exec. Order No. 13,642, 78 Fed. Reg. 28,111 (May 9, 2013), http://www

.whitehouse.gov/the-press-office/2013/05/09/executive-order-making-open-and-machine-readable-new-default-government-.

275 MCNEAL, supra note *, at 20; see UK’s Suffolk Police Helicopter Unit Now on Twitter,HELIHUB (Sept. 3, 2012), http://helihub.com/2012/09/03/uks-suffolk-police-helicopter-unit-now-on-twitter/.

276 MCNEAL, supra note *, at 20; see, e.g., Our Aims, HELICOPTER NOISE COAL., http://www.helicopter-noise.org.uk/ (last updated Oct. 28, 2007).

277 MCNEAL, supra note *, at 20; see Julian Huppert et al., Early Day Motion 394: Helicop-ter Flights over London, UK PARLIAMENT (July 14, 2012), http://www.parliament.uk/edm/2012-13/394 (calling on government to introduce legislation to regulate and reduce amount of noisepollution caused by nighttime police helicopter flyovers in London).



accounts for their helicopters that publish real-time or delayed-timeupdates of the aircraft’s activity.”278

It appears that helicopter Twitter accounts279 have become agrowing trend amongst British police departments, and have had animmediate and powerful effect on public relations in their respectivejurisdictions. “In Islington, the police department went from strug-gling to handle the overload of noise complaints relating to the de-partment’s use of its helicopter to receiving no complaints after thecreation of its Helicopter Twitter feed.”280 The department reflectedon the effectiveness—as well as future potential—of the Twitter feedby issuing this statement:

Maybe that is all people wanted—just to know and under-stand what we were doing. We don’t update people in realtime, but my vision is that soon we will be able to let peopleknow about an operation as soon as it is over. In some caseswe could get them to help—imagine if an elderly person withAlzheimer’s was missing in Islington, we could Tweet our fol-lowers to keep an eye out.281

Another police department in Suffolk launched its Twitter feed aspublic outreach. One observer with the Suffolk Police, described thedepartment’s intentions in the following way:

We hope to use the Twitter feed to highlight the positivework being done by the Air Operations Unit and to keepmembers of the public informed as to why the helicopter hasbeen deployed. We hope people will enjoy finding out moreabout the Unit and hopefully our tweets will give some ex-planation as to why we have been deployed and give someinteresting insights into a very important policing tool.282

278 MCNEAL, supra note *, at 20. Not all activity is published. The Cleveland (UK) PoliceDepartment’s website indicates that “[t]his page is intended to provide basic information to thegeneral public regarding the work of the police helicopter and will be updated on a daily basis.Weekend and public holiday updates will appear on the next working day. . . . Please note thatnot all items are always listed due to operational sensitivity or ongoing investigation.” Helicop-ter Watch, CLEVELAND POLICE (UK), http://www.cleveland.police.uk/news/helicopter-watch.aspx (last visited Feb. 26, 2016).

279 See, e.g., @MPSinthesky, TWITTER, https://twitter.com/MPSinthesky.280 MCNEAL, supra note *, at 20–21; see also Jon Dean, Police Helicopter Twitter Account

Stops Islington Complaints, ISLINGTON GAZETTE (Feb. 12, 2012, 11:20 AM), http://www.islingtongazette.co.uk/news/police_helicopter_twitter_account_stops_islington_complaints_1_1206725.

281 Dean, supra note 280. R282 MCNEAL, supra note *, at 21; see Suffolk Police, UK’s Suffolk Police Helicopter Unit

Now on Twitter, HELIHUB (Sept. 3, 2012), http://helihub.com/2012/09/03/uks-suffolk-police-helicopter-unit-now-on-twitter/.



This anecdotal evidence suggests that the practice of disclosingnonsensitive flight logs through a public channel—such as a depart-ment web page or through Twitter—can be a useful tool in reassuringthe public that law enforcement’s helicopters are engaged in legiti-mate law enforcement activity. The very idea of drones—of anykind—flying above American cities and towns might be foreboding tomany lay persons, but by requiring law enforcement to regularly pub-lish data or logs, legislators can add a citizen-centric political check ongovernment surveillance. Such a data-and-innovation-driven ap-proach to public awareness may help quell the fears of a society that isnot yet certain how it should react to the increasing presence of aerialsurveillance devices over the skies of America.

E. Institutionalized Oversight

State and local government may also want to create oversightboards modeled after the federal Privacy and Civil Liberties OversightBoard.283 The local board could comprise appointees drawn from thecommunity. Such a surveillance oversight board could have a cross-section of civil liberties and law enforcement-minded individuals whocould conduct audits of surveillance activities. Such audits might in-clude reviewing data that was collected, checking for compliance withaccountability procedures, or searching for areas where discriminatorytargeting may be occurring.

Independent oversight bodies can provide policymakers with atransparent means to ensure accountability and expose wrongdoing,but they may also deter wrongdoing.284 If police departments knowthat an oversight board will be auditing their activity, it may convincethem to live up to the expectations and standards embedded in thelaw.285 This, of course, assumes that policymakers want to change thestatus quo, but the amount of drone-related legislation proposed invarious jurisdictions suggests that legislators are in fact interested inmaking changes.286 Moreover, the intense public interest in the issue

283 The Privacy and Civil Liberties Oversight Board is an independent agency that analyzesand reviews policies proposed and actions taken by the executive branch to protect the countryfrom terrorism. 42 U.S.C. § 2000ee(a), (c) (2012). The Board is composed of a chairman andfour additional members, chosen in part for their expertise in the area of civil liberties. Id.§ 2000ee(h). The Board may never have more than three members of the same political party.Id. § 2000ee(h)(2).

284 For a lengthier discussion of accountability, see Gregory S. McNeal, Targeted Killingand Accountability, 102 GEO. L.J. 681 (2014).

285 ROBERT D. BEHN, RETHINKING DEMOCRATIC ACCOUNTABILITY 14 (2001).286 For a discussion of the status quo, see FRANK R. BAUMGARTNER ET AL., LOBBYING &

POLICY CHANGE: WHO WINS, WHO LOSES, AND WHY 43 (2009) (“Even if policy makers recog-



suggests that there are many incentives for elected officials to exercisegreater oversight over drone surveillance, as there is substantial inter-est group advocacy associated with the topic. However, while legisla-tors may have interest in the topic, they may not have the time orresources to exercise intense oversight. A dedicated oversight boardcould specialize in overseeing surveillance activities.

There are good reasons to believe independent oversight of sur-veillance might be quite successful. As legal scholars Eric Posner andAdrian Vermeule have pointed out, independent commissions can beestablished to review policies before and after the fact, and politiciansmight gain credibility by binding themselves to give the commissionsauthority along various dimensions.287 Policymakers might promise tofollow the recommendations of a commission and give power to acommission to review the success of policy choices related todrones.288 Independent oversight boards can be successful becausethey signal the interests of politicians in maintaining credibility andwinning the support of the public, and a willingness to make informa-tion available that could subject the government to criticism.289 Inde-pendent oversight boards allow politicians to claim they are holdinglaw enforcement accountable while at the same time shifting theblame for poor accountability decisions to others—this ensures thatpoliticians can exercise oversight without needing to fear blowbackfrom powerful law enforcement unions.290

The first challenge associated with such an approach is to ensurethat police provide surveillance information to the oversight board,which requires it to be empowered by law. Second, for an oversightboard to be successful from the outset, it requires political support. A

nize that the policy is imperfect or the result of an error . . . it may still be a hard sell to convinceothers, especially those in leadership positions, that the current policy is working so badly that itmust be overhauled. This threshold effect means that the vast majority of policies do not changeat all. . . . [F]or most issues most of the time, individual policy makers fight an uphill battle toreframe their issues.”); Gregory S. McNeal, The Status Quo Bias and Counterterrorism Deten-tion, 101 J. CRIM. L. & CRIMINOLOGY 855, 882–83 (2011) (describing status quo bias inpolicymaking).

287 ERIC A. POSNER & ADRIAN VERMEULE, THE EXECUTIVE UNBOUND: AFTER THE

MADISONIAN REPUBLIC 141 (2010).288 Id.289 Id.290 For a discussion of the power of law enforcement unions, see generally HERVEY A.

JURIS & PETER FEUILLE, POLICE UNIONISM: POWER AND IMPACT IN PUBLIC-SECTOR BARGAIN-

ING (1973); David Alan Sklansky, Not Your Father’s Police Department: Making Sense of theNew Demographics of Law Enforcement, 96 J. CRIM. L. & CRIMINOLOGY 1209 (2006), 1229–34(2006); Michael Tracey, The Pernicious Power of the Police Lobby, VICE (Dec. 4, 2014), http://www.vice.com/read/the-pernicious-power-of-police-unions.



failure on the part of politicians to empower an oversight board mayengender political fallout for the policymakers who established theoversight board, but only if the commissioners have a means to com-municate their lack of empowerment. The board, once appointed,may operate as independent investigators who will have an interest inensuring they are not stonewalled. However, because these memberswill be appointed by politicians with their own agendas or the boardmembers themselves may have political ambition, the individuals cho-sen may have reasons to want to avoid exposing abusive surveillancepractices that might create political enemies amongst law enforce-ment. That reality may temper the success of an independent over-sight board, but these challenges are inherent in any form of oversight(for example, local elected judges who approve warrant applicationsare not immune from these influences).

CONCLUSION

The emergence of drones in domestic skies raises understandableprivacy concerns that require careful and sometimes creative solu-tions. The smartest approach—one that balances innovation and pri-vacy—is one that does not disrupt the status quo. Such an approachrequires five key components.

This Article argued that scholars and legislators should move be-yond a warrant-based, technology-centric approach to protecting pri-vacy from aerial surveillance. Such an approach is unworkable,counterproductive, and may stifle efforts to enact more privacy-pro-tective legislative regimes. Instead, legal reform proposals should fo-cus on excluding low-altitude flights and surveillance, coupled withimposing limits on persistent surveillance, requiring enhanced ac-countability procedures for data retention and access, and creatingnew transparency and accountability measures. This Article took thecounterintuitive position that technology may make unmanned aerialsurveillance more protective of privacy than manned surveillance.

Specifically, this Article made five core recommendations. First,landowners should have the right to exclude aircraft, persons, andother objects from a column of airspace extending from the surface oftheir land up to 200 feet above ground level. Such an approach is anecessary, albeit insufficient solution aimed at addressing low-altitudeoverflights and surveillance. However, it is only a stopgap measure, assophisticated surveillance technology continues to evolve and willeventually allow for high-quality surveillance from longer distances.Second, to address the threat of persistent surveillance of particular



individuals, this Article argued that legislators should craft simple, du-ration-based surveillance legislation that will limit the aggregateamount of time the government may surveil a specific individual.Third, to address the possibility that drones and other sophisticatedaerial surveillance technology will allow the government to build acomprehensive picture of an entire community’s daily movements (adifferent persistent surveillance harm), governments should mandatedata-retention procedures that require heightened levels of suspicionand increased procedural protections for accessing stored data gath-ered by aerial surveillance, coupled with a requirement that data bedeleted after a legislatively mandated period of time. Fourth, govern-ments should impose enhanced transparency and accountability mea-sures, requiring agencies to regularly publish information about theuse of aerial surveillance devices (both manned and unmanned) andshould consider creating local oversight boards to police the use ofsurveillance technologies. Fifth, legal reformers should recognize thattechnology such as geofencing and auto-redaction may make dronesurveillance more protective of privacy than human surveillance.

Outright bans on the use of drones and broadly worded warrantrequirements that function as the equivalent of an outright ban dolittle to protect privacy or public safety and in some instances will onlyserve to protect criminal wrongdoing. Legislators should instead en-act legislation that maintains the current balance between legitimatesurveillance and individuals’ privacy rights. The best way to achievethat goal is to follow the five recommendations set forth in thisArticle.

Documents

Drones and the Future of Aerial Surveillance · Drones and the Future of Aerial Surveillance Gregory S. McNeal* ABSTRACT For the first time in American history a regulatory regime